Wakilii

Falcon Estates Limited v Bismillah Trading Limited (Civil Appeal 28 of 2020)

Supreme Court · [2022] UGSC 13 · 2022 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second civil appeal from a decision of the Court of Appeal allowing an appeal against a High Court order striking out a plaint
Decision
Appeal dismissed; Court of Appeal decision upheld and Civil Suit No. 192 of 2015 to be tried at the High Court.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a second appeal in an easement dispute, the Supreme Court dismissed the appeal and upheld the Court of Appeal. It held that the trial judge's order striking out the respondent's plaint with costs for disclosing no cause of action conclusively determined the parties' rights and was a decree under section 2(c) of the Civil Procedure Act, so the respondent could appeal as of right without leave. An appellant who fails to file an address for service under rule 80 of the Court of Appeal Rules cannot complain of late service. Denial of previously enjoyed access disclosed a cause of action regardless of registered ownership, and the Court of Appeal properly exercised its discretion on costs.

Outcome

Appeal dismissed; Court of Appeal decision upheld and Civil Suit No. 192 of 2015 to be tried at the High Court.

Facts

The dispute concerned an alleged easement (right of way) used by the respondent across the appellant's land at Muyenga, Kampala. In April 2015 the appellant sued the respondent for trespass and a declaration that the easement claim was illegal, having obtained permission to build a perimeter wall and placed a container blocking the access path. A day later the respondent sued the appellant and KCCA claiming a right of easement, and obtained a temporary injunction. The two suits were consolidated. The appellant then objected that it was no longer the registered proprietor, the land having been transferred to M/s Lulu Pearl Limited, and applied to strike out the respondent's suit for disclosing no cause of action; the trial judge granted that order. On appeal, the Court of Appeal set aside the strike-out and remitted the consolidated suits for trial before another judge. The appellant appealed to the Supreme Court.

Issues

  1. Whether Civil Appeal No. 239 of 2018 was competently before the Court of Appeal, given that it was filed without leave of court and the memorandum and record were served out of time.
  2. Whether the plaint in Civil Suit No. 192 of 2015 disclosed a cause of action against the appellant despite the appellant having ceased to be the registered proprietor of the suit land.
  3. Whether the Court of Appeal erred in re-evaluating the evidence and in awarding costs against the appellant in the appeal and in the High Court.

Orders

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

Rules and key headnotes

Civil Procedure — Decree and Order — Striking out a plaint with costs as a decree under s.2(c) Civil Procedure Act
An order striking out an entire plaint with costs for failure to disclose a cause of action conclusively determines the rights of the parties and constitutes a decree within the meaning of section 2(c) of the Civil Procedure Act, which is appealable as of right without leave of court.
Civil Procedure — Pleadings — Distinction between rejection of a plaint and striking out a pleading
Rejection of a plaint under Order 7 of the Civil Procedure Rules leaves the party free to file a fresh plaint on the same cause of action, whereas striking out a pleading under Order 6 rule 30 gives the aggrieved party a right of appeal as of right.
Civil Procedure — Appeals — Service of memorandum and record — Court of Appeal Rules rule 80
A party who has not filed a full and sufficient address for service as required by rule 80 of the Court of Appeal Rules cannot be heard to complain that the memorandum and record of appeal were served out of time.
Civil Procedure — Cause of action — Disclosure where access to land is obstructed
A person who obstructs another's previously enjoyed access to neighbouring land discloses a cause of action against himself whether or not he is the registered proprietor of the land at the material time.
Land & Property — Easements — Easement acquired by prescription as an unregistered equitable interest
An easement acquired by prescription is equitable in nature, need not be registered on the title to be enforceable, and is enforceable not only against the registered proprietor of the servient tenement but against any person who blocks or obstructs its use.
Civil Procedure — Second appeal — Limits on interference with concurrent findings of fact
On a second appeal the Supreme Court is precluded from questioning the trial court's findings of fact where there was evidence to support them, and may interfere only where there was no evidence to support a finding, that being a question of law.
Civil Procedure — Costs — Discretion and appellate interference
The award of costs is discretionary and costs normally follow the event; an appellate court will not interfere with the exercise of that discretion unless the lower court acted upon a wrong principle of law.

Legislation cited (15)

Cases cited (11)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Chemonges Khamis & Anor v Kapchorwa Referral Hospital (HCCS No. 27 of 2012)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Tororo Cement Co. Ltd v Frokina International (Civil Appeal No. 02 of 2001)
  • Kampala Bottlers Ltd v Damanico Brothers (Civil Appeal No. 22 of 1992)
  • Wobudeyo Peoce & Anor Vs. Morgaret Nawire CA 0017 of 21'2 (HC Mbole)
  • Hwan Sung Limited v M. & D. Timber Merchants & Transporters Limited (Civil Appeal No. 02 of 2018)
  • South British lnsce. Co. Ltd. Vs. Mohamedali Taibji Ltd (1973) zLO E.A
  • Herbert Semakula Musoke & Anor v Lawrence Nabamba & 2 Ors (Civil Appeal No. 22 of 2019)
  • Auto Garage & Ors v Motokov (1971) EA 514
  • Eddie Kwizera v Attorney General (Constitutional Appeal No. 1 of 2008)

Full judgment

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

Falcon Estates Limited v Bismillah Trading Limited (Civil Appeal 28 of 2020) [2022] UGSC 13 (17 March 2022)
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.