Last updated on August 16th, 2024 at 10:22 am
Topic: Grant of Access Road – Land Law
Date of Judgment: 10 June 2024
Court: High Court of Uganda at Kampala (Land Division)
Case Number/Citation: Civil Appeal No. HCT-00-LD-CA-0073-2020, 2024 UGHCLD 159
Judge(s): Justice Bernard Namanya
Summary Facts of the Case
The appellant, Kakooza Hussein, sued the respondents for trespassing on an access road to his land located at Kasubi Zone IV, which he purchased from the late Nalongo Nanyonga in 1991.
The appellant claimed that the late Nalongo Nanyonga promised and granted him an access road from Masiro Road to his plot.
The dispute arose when the respondents, children of the late Nalongo Nanyonga, sold part of the land to the 1st respondent, Luliibe Charles, who blocked the access road with a gate in 2010.
The respondents denied the existence of the access road from Masiro Road to his plot of land, claiming instead it was from Sendi Road.
The Magistrates Court held in favor of the respondent that the access road was merely promised but never fulfilled.
Legal Issues Before the Court
- Whether the appellant was granted an access road as claimed.
- Whether the access road existed on the ground prior to the 1st respondent’s purchase.
- Whether the trial court correctly concluded that the access road was just a promise and not fulfilled.
The decision of the Court
The High Court allowed the appeal, set aside the lower court’s judgment, and declared that the appellant is entitled to an access road running from Masiro Road to his home.
The respondents were declared trespassers and ordered to vacate the access road by 30 June 2024, with further directions for eviction if they fail to comply.
The court awarded general damages of UGX 5,000,000 to the appellant and ordered the respondents to pay the costs of the appeal and the lower court suit.
The sale agreement from 1991 explicitly confirmed the grant of an access road by the late Nalongo Nanyonga to the appellant.
Oral testimonies and subsequent conduct demonstrated the existence and use of the access road.
The evidence provided by witnesses was compelling and uncontradicted, establishing the existence of the access road prior to the 1st respondent’s purchase.
Key Quote: “A plain reading of the terms of the sale agreement between the late Nalongo Nanyonga and the appellant shows that the late Nalongo Nanyonga promised an access road to the appellant, and described the path of the access road in the following words: “I have promised to give him an access road, stretching from the Masiro Road running along Widow Wamala’s hedge up to his Plot.”. She then added the following important words: “It is confirmed that this is where it is supposed to pass.” The path or route of the access road described by the late Nalongo Nanyonga is the one claimed by the appellant. It appears that the 1st respondent subsequently acquired Widow Wamala’s plot that is mentioned in the 1991 Agreement, Exh.P1 (see page 58 of the record of proceedings). With these words, can one say that the late Nalongo Nanyonga only promised an access road to the appellant but did not fulfill the promise? Why did the late Nalongo Nanyonga use the words, “it is confirmed”? – Justice Bernard Namanya
Law Applied by the Court
- Section 92(b) of the Evidence Act, General Industries (U) Ltd v. Non-Performing Assets Recovery Trust (Civil Appeal No. 5 of 1998); if a written contract is silent on a matter that is material to both parties, then oral evidence is admissible to provide clarity to the contract, and give meaning to the contractual relationship between the parties
Counsel on Record
- For the Appellant: Mr. Kakooza Shamim from M/s JM Musisi Advocates
- For the Respondents: Mr. Ambrose Tebyasa from M/s Ambrose Tebyasa & Co. Advocates
Conclusion
This judgment illustrates the enforceability of a grant of an access road in land transactions.
It reinforces the rights of purchasers to access routes granted and confirmed in land sale agreements.