Wakilii

Kalanzi Katabazi and 2 Others v Kadoma and Another [2023] UGSC 31

Supreme Court · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from a Court of Appeal judgment affirming a High Court (Land Division) decision in a land trespass suit
Decision
Second appeal dismissed; the decisions of the High Court and Court of Appeal stand

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Holding

On a second appeal in a land trespass suit, the Supreme Court dismissed the appeal. The appellants sought to argue that a footpath on the suit land was an easement entitling them to access, but that case had never been pleaded; their defence and counterclaim were founded on an access road governed by the Access to Roads Act, which the lower courts concurrently found was unlawfully created without following the statutory procedure. A new point cannot be raised on appeal unless based on facts not in controversy and unchallenged evidence; here the easement question was contested and unpleaded, so allowing it would deny the respondents a fair hearing. As the nuisance ground depended on the easement ground, it also failed.

Facts

The respondents are registered proprietors of 1.021 acres comprised in Kyadondo Block 269 Plot 25 at Lubowa, purchased from a prior proprietor after a search showed no access road. On surveying, they found 0.18 acres had been alienated, ostensibly to create an access road serving neighbouring Plots 26, 50, 53, 54 and 55, including the appellants' plots. The respondents sued the appellants for trespass on the 0.18 acres and fenced off their land. The appellants counterclaimed, asserting a long-standing access road reflected in a later (1994) cadastral map and alleging private nuisance from the perimeter wall obstructing their access. The High Court (Land Division) found the appellants trespassers, holding the respondents' title (registered 1968) took precedence over the later instrument and that any access road was created without consent and without following the Access to Roads Act. The counterclaim was dismissed.

Issues

  1. Whether the appellants could raise, on a second appeal, the contention that a footpath on the suit land constituted an easement, where that issue was not pleaded at trial.
  2. Whether the Court of Appeal erred in holding that the existence of a footpath was not a form of easement on the suit property.
  3. Whether the respondents' erection of a wall amounted to a private nuisance against the appellants.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondents.

Key headnotes

Pleadings — New Cause of Action on Second Appeal — Departure from Pleadings
A party may not raise on a second appeal a cause of action that was never pleaded at trial; pleadings define the matters in controversy, and a litigant cannot depart from them without amendment to set up a new basis for the claim.
Appeals — New Point of Law — Facts Not in Controversy
A new point of law raised for the first time on appeal must be based on facts not in controversy and on unchallenged evidence; where the underlying matter is contested, it cannot form the basis of a new point on appeal.
Second Appeal — Concurrent Findings of Fact
A second appeal lies on points of law, particularly where the first appellate court and the trial court have arrived at concurrent findings of fact on the issue.
Access Roads — Access to Roads Act — Statutory Procedure Overrides Common Law
The creation of an access road is governed by the Access to Roads Act, whose provisions override the common law; an access road created without following the statutory procedure of application, service, hearing before the Land Tribunal and registration is unlawful.
Private Nuisance — Dependence on Established Right of Access
Where a party has no established easement or lawful right of access over another's land, the landowner's erection of a wall on that land does not constitute a private nuisance.
Fair Hearing — Notice of the Cause of Action through Pleadings
The right to a fair hearing is violated where a party is condemned on a cause of action of which no fair notice was given through the pleadings, as the opposing party has no opportunity to prepare or adduce evidence in defence.

Legislation cited (9)

  • Access to Roads Act Cap 350 s.2
  • Access to Roads Act Cap 350 s.3
  • Access to Roads Act Cap 350 s.7
  • Access to Roads Act Cap 350 s.10
  • Civil Procedure Rules Order 15 rule 1
  • Civil Procedure Rules Order 21 rule 4
  • Civil Procedure Rules Order 21 rule 5
  • Civil Procedure Rules Order 6 rule 7
  • Registration of Titles Act

Cases cited (7)

  • Alwi Abdulrehman Saggaf v Abed Ali Algeredi [1961] 1 EA 767
  • Perkowski v City of Wellington Corporation [1958] 3 All E.R. 368
  • Connecticut Fire Insurance Co v Kavanagh [1892] A.C. 473
  • Esso Petroleum Co Ltd v Southport Corporation [1956] A.C. 218
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Jani Properties Ltd v Dar-es-salaam City Council [1966] EA 281
  • Struggle Ltd versus Pan African Insurance Co. Ltd (1990) ALL 46, 47
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.