Wakilii

Sengabi v Nakiyingi (Civil Appeal No. 59 of 2018)

High Court · [2019] UGHCLD 26 · 2019 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court decision in a land trespass and access road dispute
Decision
Lower court judgment set aside; judgment entered for the appellant (original plaintiff) with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal, finding that the trial magistrate erred in concluding that an access road existed on the appellant's land. The evidence showed no access road existed at the time the land was sold by the common vendor, and the respondent could not prove its existence. The trial magistrate also failed to follow proper locus visit procedures. The lower court judgment ordering demolition of the appellant's house and awarding damages was set aside.

Outcome

Lower court judgment set aside; judgment entered for the appellant (original plaintiff) with costs

Facts

The appellant purchased land (Plot 7862) in 2006 from Samuel Kyeyune, which was formerly part of Block 265 Plot 7100. The respondent had earlier purchased adjacent land (Plot 7099) from the same vendor in 1997. In 2008, the respondent claimed an access road existed through the appellant's plot to reach her property. A local council complaint by the respondent was dismissed. The appellant constructed a house on his land, and the respondent sued, claiming he had blocked her access road. The trial magistrate found for the respondent, ordered demolition of the appellant's house, and awarded damages. The appellant appealed to the High Court.

Issues

  1. Who is the rightful owner of the suit land?
  2. Whether the Defendant/counter claimant has any access road on the suit land?
  3. Whether the Plaintiff/counter Defendant trespassed on the access road?
  4. What remedies are available?

Orders

  • Appeal allowed on all grounds.
  • Lower court judgment set aside.
  • Judgment entered for the plaintiff in the lower court.
  • Costs awarded to the appellant here and below.

Rules and key headnotes

Land Law — Access Roads — Burden of Proof of Existence
A party claiming the existence of an access road over another's land bears the burden of proving that the access road existed at the time of the original sale, and evidence from the common vendor and land records is required to establish such a right.
Evidence — Onus of Proof in Civil Suits — Section 106 Evidence Act
In civil proceedings, the onus of proof lies on the party who alleges the existence of a fact to prove it on a balance of probabilities, and mere assertions or marks on a title created after the original sale do not discharge this burden.
Land Law — Trespass to Land — Elements
Trespass to land occurs only when a person makes an unauthorised entry upon land and thereby interferes with another's possession; where no access road existed on the land in question, constructing a house on one's own land cannot constitute trespass.
Civil Procedure — Locus in Quo Visits — Compliance with Practice Direction 1/2017
Where a trial court conducts a locus visit in a land dispute, it must follow the procedure laid down in Practice Direction No. 1/2017, including recording who said what at the locus; failure to follow proper procedure may occasion a miscarriage of justice and vitiate the findings.
Civil Procedure — Locus in Quo Visits — Purpose and Scope
A visit to the locus in quo is not a fishing expedition for new evidence; it serves only to clarify evidence already on record, and observations made at the locus must be supported by evidence led in court.

Legislation cited (2)

Cases cited (5)

  • Uganda Revenue Authority v Rwakasanje Azariu & 2 Ors (CACA No. 8 of 2007)
  • Narsensio Begumisa & 3 Ors v Eric Kibebaga (SCCA No. 17 of 2002)
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 08 of 1998)
  • Hunt v Luck (1901) ICH 45
  • Justine E M N Lutaya versus; Civil Appeal No. 11/2002

Full judgment

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

Sengabi_Vs_Nakiyingi_(Civil_Appeal_No._59_of_2018)_[2019]_UGHCLD_26_(29_May_2019)
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.