Wakilii

Afuwa Nakandi v Namutebi Mastulah (Civil Appeal No. 179 of 2023)

High Court · [2024] UGHCLD 361 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Chief Magistrate's Court of Wakiso at Wakiso arising from Civil Suit No. 085 of 2016
Decision
Appeal dismissed with costs to the respondent

Observed later treatment

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Holding

The High Court dismissed the appeal. The appellant failed to prove ownership of an alleged access road. No evidence established that an access road existed when she purchased the land or that she created one lawfully. Without proof of the access road, the appellant could not sustain a claim of trespass. The court held that creation of an access road requires statutory process or negotiation, not mere speculation or long usage.

Outcome

Appeal dismissed with costs to the respondent

Facts

The appellant purchased land comprised in Busiro Block 347 plot 1651 at Nalumunye Bandwe in 2007 from Nalukanga Sala, daughter of the registered proprietor Nakiyaga Milly. She claimed that in 2015 the respondent encroached on her land by constructing rental houses that blocked a 10-foot access road. The respondent had purchased her kibanja from Serunkuma Rashid in 2015, who had bought it from Nakiyaga Milly in 2006. At trial, the Chief Magistrate dismissed the appellant's suit, finding no trespass. The appellant appealed, contending the trial magistrate erred in finding the respondent was not a trespasser and in failing to recognize the blocked access road. The High Court visited locus in quo and found two distinct plots but no evidence of a planned or negotiated access road.

Issues

  1. Whether the suit land belongs to the appellant/plaintiff?
  2. Whether the respondent/defendant trespassed on the appellant/plaintiff's land?
  3. Whether there are possible remedies to the parties?

Orders

  • The appeal is dismissed.
  • Costs to the respondent.

Rules and key headnotes

Civil Procedure — Pleadings — Parties Bound by Pleadings
Parties are bound by their pleadings and cannot succeed on a case not set up in the pleadings. A party will not be allowed to change their case at trial or set up a case inconsistent with what was alleged in the pleadings, except by way of amendment.
Land & Property — Access Roads and Rights of Way — Creation and Proof
The creation of an access road requires either statutory process under the Roads Act or negotiation between parties. An access road cannot be imputed by conduct or long usage alone. A party claiming the existence of an access road must provide documentary or other cogent evidence; speculation is insufficient.
Land & Property — Trespass to Land — Proof of Unauthorized Entry
Trespass to land occurs when a person makes an unauthorized entry upon another's land, thereby interfering with lawful possession. To sustain a claim of trespass, the claimant must prove that the alleged trespasser entered land over which the claimant has ownership or possessory rights.
Evidence — Burden of Proof — Civil Cases
In civil cases, the onus of proof is on the party who alleges the existence of a fact. Where a party fails to adduce oral or documentary evidence to prove an alleged fact, findings based on that fact are erroneous.
Civil Procedure — Appeals — Time for Filing Appeal
Under the Civil Procedure Act s.79, the thirty-day period for filing an appeal starts to run only after the appellant receives the certified copy of the decree and record of proceedings. The time taken by the court in preparing the decree or proceedings is excluded from the limitation period.

Legislation cited (8)

Cases cited (8)

  • Selle and Anor v Associated Motor Boat Limited and Others (1968) EA 123
  • Fredrick Zaabwe v Orient Bank & 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Supreme Court Civil Appeal No. 33 of 1992)
  • Sengabi Christopher v Nakiyingi Imelda (High Court Civil Appeal No. 59 of 2018)
  • Justine E M N Lutaaya v Sterling (Civil Appeal No. 11 of 2002)
  • Adrabo Stanley v Madira Jimmy (High Court Civil Suit No. 24 of 2013)
  • Draza Moses v Abdul Salam & Another (High Court Civil Suit No. 16 of 2013)

Full judgment

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

Afuwa_Nakandi_v_Namutebi_Mastulah_(Civil_Appeal_No._179_of_2023)_[2024]_UGHCLD_361_(29_April_2024)
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.