Wakilii

Kakooza v Luliibe and 4 Others (Civil Appeal 73 of 2020)

High Court · [2024] UGHCLD 159 · 2024 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court judgment dismissing a suit for trespass on an access road
Decision
Appeal allowed; access road declared in favour of appellant; respondents ordered to vacate by 30 June 2024; permanent injunction issued; general damages and costs awarded to appellant

Observed later treatment

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Holding

A written sale agreement in 1991 granted the appellant land together with an access road. The words 'I have promised to give him an access road' followed by 'It is confirmed that this is where it is supposed to pass' constituted a confirmed grant, not merely a promise. Extrinsic evidence was admissible to clarify the route and measurements of the access road where the written agreement was silent. Oral testimony and conduct of the parties over 18 years established that the access road existed and was used until the respondents wrongfully included it in a subsequent sale in 2009. Appeal allowed.

Outcome

Appeal allowed; access road declared in favour of appellant; respondents ordered to vacate by 30 June 2024; permanent injunction issued; general damages and costs awarded to appellant

Facts

In 1991, the appellant purchased land from the late Nalongo Nanyonga at Kasubi Zone IV. The written sale agreement stated 'I have promised to give him an access road, stretching from Masiro Road running along Widow Wamala's hedge up to his Plot. It is confirmed that this is where it is supposed to pass.' The appellant built a house and used the access road for approximately 18 years, including for importing goods via trailers. After Nalongo Nanyonga's death, her children (the 2nd to 5th respondents) sold land to the 1st respondent in 2009. In October 2010, the 1st respondent erected a gate blocking the access road. The appellant sued for trespass. The Chief Magistrate's Court dismissed the suit, holding that the access road was merely a promise never fulfilled. A tenant, Mrs. Teddy Mbiire, had operated a bar and restaurant in the area but testified the access road remained open and that Nalongo Nanyonga's daughter directed her to negotiate with the appellant because he owned the access road.

Issues

  1. Whether an access road exists to the appellant's land as claimed by the appellant.

Orders

  • Judgment of the Chief Magistrate's Court in Civil Suit No. 393 of 2011 delivered on 11 September 2020 is set aside.
  • The appellant is entitled to an access road running from Masiro Road in Kasubi to his home, measuring 0.014 acres, and other particulars described in Exh.P7, opening boundary report dated 13 October 2017.
  • The respondents are declared trespassers on the access road.
  • The respondents shall vacate the access road and remove any illegal buildings by 30 June 2024.
  • If the respondents fail to vacate the access road as ordered, they shall be evicted in accordance with The Constitution (Land Evictions) (Practice) Directions, 2021.
  • A permanent injunction is issued restraining the respondents, their agents, servants, workmen and all those claiming under them from trespassing, encroaching, interfering or in any way dealing with the access road.
  • The respondents shall pay general damages of UGX 5,000,000 to the appellant.
  • The respondents shall pay the costs of this appeal and the costs of the suit in the lower court.

Rules and key headnotes

Land & Property — Access Roads — Interpretation of Sale Agreements — Promise Followed by Confirmation
Where a written sale agreement contains the words 'I have promised to give him an access road' immediately followed by 'It is confirmed that this is where it is supposed to pass', the use of the word 'confirmed' transforms the promise into a completed grant of the access road.
Evidence — Extrinsic Evidence — Admissibility to Clarify Written Contracts — Access Road Route and Measurements
Where a written contract is silent on a matter material to both parties, oral evidence is admissible to provide clarity and give meaning to the contractual relationship. Extrinsic evidence may include the conduct of the parties subsequent to the contract and evidence obtained from a locus in quo visit.
Evidence — Burden of Proof — Unrebutted Evidence — Credibility
If evidence is adduced and is not rebutted by the opposite party, it is deemed to be credible and probably true.
Land & Property — Access Roads — Conduct of Parties — Long Use Without Dispute
Where an access road has been used without dispute for approximately 18 years following a sale agreement granting the road, and a dispute arises only when the seller's successors purport to sell land including the access road to a third party, the long undisputed use constitutes evidence that the access road was validly granted.
Land & Property — Access Roads — Sale by Successors — Rights Previously Granted
A vendor's successors cannot legally sell land occupied by an access road that was already granted by the deceased vendor to another party. Such a purported sale does not extinguish the access road rights previously granted.
Civil Procedure — Appeals — Locus in Quo Visits — Admission of Further Evidence
An appellate court may conduct a locus in quo visit and admit further evidence where necessary to enable the court to appreciate the dispute between the parties, in accordance with established principles allowing appellate courts to admit new evidence.

Legislation cited (3)

Cases cited (6)

Full judgment

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Kakooza_v_Luliibe_and_4_Others_(Civil_Appeal_73_of_2020)_[2024]_UGHCLD_159_(10_June_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.