Wakilii

Musoke v Agard and 2 Others (Consolidated Civil Appeals 134 of 2017; Consolidated Civil Appeals 46 of 2016)

Court of Appeal · [2020] UGCA 2164 · 2020 Appeals Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Two consolidated civil appeals to the Court of Appeal; one a second appeal from the High Court's appellate decision, the other an appeal from a High Court ruling refusing contempt orders.
Decision
Both consolidated appeals dismissed with costs to the respondents; lower court findings of trespass and contempt dismissal affirmed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed both consolidated appeals. In Civil Appeal No. 134 of 2017, the contempt ruling was not appealable as of right under Order 44 rule 1 and section 76 of the Civil Procedure Act, and the appellant had not sought leave; the appeal was accordingly dismissed for want of jurisdiction. In Civil Appeal No. 46 of 2016, the Court held that a donor whose lease had expired could not grant a valid power of attorney, so DW1's evidence was correctly expunged, and that an existing access road over the appellant's land constituted an easement the respondents could use without consent, making the appellant's excavation trespass.

Outcome

Both consolidated appeals dismissed with costs to the respondents; lower court findings of trespass and contempt dismissal affirmed.

Facts

The 1st and 2nd respondents were registered proprietors of plots in Kyadondo Block 268, and the 3rd respondent owned a neighbouring kibanja. The appellant claimed to be registered proprietor of an adjacent plot. The respondents settled in the neighbourhood before the appellant and accessed their homes using a road passing through the appellant's land. On 20 June 2011 the appellant excavated the access road up to two metres deep, blocking the respondents' access and damaging their water line. The respondents sued in the Chief Magistrate's Court at Entebbe, which declared the appellant a trespasser and issued a permanent injunction. That decision was upheld on appeal by the High Court. The appellant later sought, in the High Court Execution Division, to hold the respondents in contempt of an interim stay order obtained from a Registrar; that application was refused on the ground he had unclean hands. The appellant brought two consolidated appeals against both High Court decisions.

Issues

  1. Whether the appellant had a right of appeal to the Court of Appeal against a contempt ruling without first seeking leave.
  2. Whether the evidence of the appellant's witness DW1 was wrongly expunged from the record where the power of attorney was granted after the appellant's lease had expired.
  3. Whether the appellant trespassed on an existing access road used by the respondents to access their homes.

Orders

  • Civil Appeal No. 134 of 2017 dismissed.
  • Civil Appeal No. 46 of 2016 dismissed.
  • Consolidated appeals dismissed with costs to the respondents.

Rules and key headnotes

Civil Procedure — Right of Appeal — Leave to Appeal from Non-Appealable Orders
An order on a contempt of court application is not appealable as of right; under Order 44 rule 1 and section 76 of the Civil Procedure Act, leave of court must be sought, and an appeal filed without such leave is incompetent as the right of appeal is a creature of statute.
Civil Procedure — Second Appeal — Duty of Second Appellate Court
On a second appeal from a decision of the High Court exercising appellate jurisdiction, the court may appraise the inferences of fact drawn by the trial court but examines only whether the first appellate court correctly applied the principles it should have applied, and cannot hear additional evidence.
Land & Property — Powers of Attorney — Capacity of Donor with Expired Lease
A donor of a power of attorney cannot grant a power that he does not legally own; where a leasehold interest has expired, the proprietor cannot validly appoint an attorney under section 146(1) of the Registration of Titles Act, and evidence given by such an invalidly appointed attorney is liable to be expunged.
Land & Property — Easements — Right of Way Over Adjoining Land
A clearly demarcated access road over adjoining land that benefits another's property and is capable of being the subject of a grant constitutes an easement which may be enjoyed at common law without the consent of the servient tenement owner.
Land & Property — Access to Roads Act — Scope of Application
The Access to Roads Act, cap. 350, applies only where no access road has ever existed and a road of access must be constructed; where access has long been gained through an existing road over another's land, the common law principles of easement apply and the Act does not.
Land & Property — Trespass — Interference with Easement
Where a servient tenement owner interferes with an easement, such as by excavating an existing access road benefiting adjoining landowners, he is properly adjudged a trespasser.

Legislation cited (8)

Cases cited (10)

  • Begumisa v Tibebaga (Civil Appeal No. 17 of 2002)
  • Megha Industries (U) Ltd v Comform Uganda Limited (Miscellaneous Cause No. 21 of 2014)
  • Lukwago v Attorney General and Another (Civil Appeal No. 16 of 2014)
  • Habre International Trading Co. Ltd v Francis Butagira (Civil Appeal No. 3 of 1999)
  • Zaabwe v Orient Bank Ltd (Civil Appeal No. 4 of 2006)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v. R [1957] EA 386
  • Okeno v. Republic [1972] EA 32
  • Charles Bitwire v Uganda (Criminal Appeal No. 23 of 1985)
  • Kairu v. Uganda 1978 HCB 123

Full judgment

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

Musoke v Agard and 2 Others (Consolidated Civil Appeals 134 of 2017; Consolidated Civil Appeals 46 of 2016) [2020] UGCA 2164 (10 December 2020)
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.