Wakilii

Fowler and Another v Busingye (Miscellaneous Application No. 111 of 2013)

High Court · [2013] UGHC 285 · 2013 Application Granted — Plaint Rejected AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to reject plaint under Order 7 rules 11(a), (e) and Section 98 CPA arising from civil suit for declaration
Decision
Plaint rejected and struck out; civil suit dismissed; counterclaim to proceed before another judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that the plaintiff's plaint failed to disclose a cause of action. The court found the plaintiff had no legal right to construct an access road through the defendants' land, as the disputed driveway was entirely part of the defendants' registered title. The plaintiff already had direct access to Ismail Road. KCCA's site meeting confirmed the access road encroached on defendants' property and the building infringed their privacy rights under Article 27 of the Constitution. Plaint rejected and suit dismissed.

Outcome

Plaint rejected and struck out; civil suit dismissed; counterclaim to proceed before another judge

Facts

The applicants were registered proprietors of Plot 57A Ismail Road, Mbuya. The respondent owned adjacent Plot 57B. The respondent began constructing apartment blocks, obtaining permits from Kampala Capital City Authority (KCCA). The applicants complained that Block D would invade their privacy and that the respondent intended to use the applicants' driveway as access, which was entirely part of the applicants' registered land. Following a joint site meeting on 6 August 2012, KCCA confirmed the applicants' concerns: the building infringed privacy and the proposed access road encroached on Plot 57A. KCCA halted construction on Block D and the driveway. The respondent filed suit seeking declarations that the applicants' actions attempting to block development were wrongful and claiming an easement through the applicants' land. The applicants applied to reject the plaint for disclosing no cause of action.

Issues

  1. Whether the plaint discloses a cause of action.
  2. What are the remedies available in the circumstances?

Orders

  • The plaint does not disclose a cause of action against the applicants/defendants. The plaint is hereby rejected and struck out.
  • Civil Suit No. 611 of 2012 is accordingly dismissed with costs to the defendants.
  • This application is allowed in the terms and orders being sought therein with costs to the applicants.
  • The counterclaim being an independent suit shall proceed on hearing inter partes before another Judge of this High Court of Uganda, Land Division, since the presiding judge is on transfer to the Criminal Division.

Rules and key headnotes

Civil Procedure — Rejection of Plaint — Disclosure of Cause of Action — Essential Elements
A plaint discloses a cause of action only if it pleads three essential elements: the existence of the plaintiff's right, violation of that right, and the defendant's liability for the violation.
Civil Procedure — Affidavit Evidence — Hearsay and Inadmissibility
An advocate cannot depone to matters in controversy on behalf of a client. Affidavit contents based on advice from counsel without independent knowledge are hearsay and inadmissible.
Land & Property — Access Roads — Constitutional Right to Property
A landowner cannot claim an easement or right of access through another's registered property merely because a planning authority approved building plans. The constitutional right to property under Article 26 protects registered proprietors from encroachment.
Land & Property — Access to Roads Act — Preconditions for Application
Where a landowner already has access to a public highway, the Access to Roads Act Cap 350 s.2 does not apply to compel an adjacent owner to grant a second access road through their land.
Administrative Law — Building Approvals — Public Health (Building) Rules
Under Public Health (Building) Rules rule 10(k), a local authority must disapprove building plans where the proposed building would interfere with the convenience or comfort of neighbouring occupiers.
Constitutional Law — Privacy Rights — Article 27
The right to privacy under Article 27 of the Constitution is a constitutional right that may be infringed by construction that directly invades the privacy of neighbouring occupiers.
Constitutional Law — Exercise of Rights — Limits under Article 43
Under Article 43 of the Constitution, in the enjoyment of rights and freedoms, no person shall prejudice the fundamental or other human rights and freedoms of others while enjoying their own rights.

Legislation cited (11)

Cases cited (10)

  • Mulindwa Birimumaso v Government Central Purchasing Corporation (HCCS No. 674 of 1998)
  • Auto Garage v Motokov (No. 3) [1971] EA 514
  • Drummond Jackson v British Medical Association [1970] 1 WLR 668
  • N.A.S Airport Service Ltd v Attorney General of Kenya [1959] EA 53
  • Wycliffe Kiggundu v Attorney General (Civil Appeal No. 27 of 1992)
  • Castelino v Rodrigues [1972] CA 223
  • Charles Kabunga v Christopher Baryaruha and 3 Others [1995] KALR 535
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 23 of 1998)
  • Mayers and Another v Akira Ranch Ltd [1974] EA 169
  • ISMAIL SERUGO (SUPRA)

Full judgment

↓ Download PDF

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

Fowler and Another v Busingye (Miscellaneous Application No. 111 of 2013) [2013] UGHC 285 (28 May 2013)
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.