Court name
HC: Civil Division (Uganda)
Judgment date
28 May 2013

Fowler & Anor v Busingye (Miscellaneous Application-2013/111) [2013] UGHCCD 74 (28 May 2013);

Cite this case
[2013] UGHCCD 74

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISCELLANOUS APPLICATION N0.111 OF 2013

(Arising Out of Civil Suit N0.611 of 2012)

 

  1. HARRIET FOWLER
  2. MARTIN FOWLER    ::::::::::::                                                                                                                                                            APPLICANTS/ DEFENDANTS

 

VERSUS

 

ARTHUR BUSINGYE:::::::::::::::                                                                                                                                                                       PLAINTIFF/RESPONDENT

 

 

RULING BY HON. MR. JUSTICE JOSEPH MURANGIRA

1.0 Introduction

  1. The applicants through their lawyers M/s Blaze Babigumira Solicitors & Advocates brought  this application against the respondent/plaintiff under Order 7 rules 11 (a), (e) and 19 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act, cap 71. The two affidavits in support of this application were sworn by the 1st applicant.

 

This application seeks the following orders; that:-

  1. The Plaint be rejected.
  2. The hearing proceeds with only the counterclaim.
  3. Costs of this application be provided for.

 

  1. The respondent through his lawyers Geoffrey Nangumya & Co. Advocates filed an affidavit in reply to this application. In his affidavit in reply, the respondent vehemently opposed this application. He prayed that this application be dismissed with costs.

2. Facts of the application

The background of this Application is set out in the Chamber Summons and supported by the Affidavit of the 1st Applicant; Mrs. Harriet Fowler but briefly is as follows;

 

The applicants/defendants are the registered proprietors of Plot 57A ISMAIL ROAD MBUYA which is on the upper side of the plaintiff/respondent’s property.

 

The plaintiff/respondent is a registered proprietor of Plot 57B ISMAIL ROAD MBUYA.

Each property had its own independent access road to Ismail Road.

The plaintiff/respondent decided to construct an apartment block on his land.

The plaintiff/respondent presented plans to Kampala Capital City Authority (KCCA) for approval and they were approved without consulting the applicants/defendants as immediate neighbours.

 

When the construction got under way the applicants/defendants realized that the apartment block (particularly Block D) when completed, would invade their privacy and the plaintiff/respondent had indicated access to the apartment block through the driveway of the applicants /defendants which is entirely part of their acreage.

 

The applicants/defendants complained to KCCA, which upon realizing that the wing of the apartment block (Block D) when completed would invade the privacy of the applicants /defendants and also the proposed access road would encroach on the property of the applicants/ defendants, stopped construction on Block D and the drive way.

 

Upon that development the plaintiff/respondent filed Civil Suit No.611 of 2012 seeking for a declaration:-

  1. A declaration that the defendant’s actions of attempting to block developments/ construction of commercial premises and an easement and or access road to the plaintiff’s premises comprised in Block D part of PLOT 57B ISMAIL ROAD, MBUYA are wrongful and illegal.

 

The applicants/defendants filed a Written Statement of Defence wherein they stated that the plaintiff/respondent does not enjoy a right of easement through their property and that invading their privacy violates their Constitutional right.

The plaintiff/respondent’s action is founded on the action of KCCA stopping the development on Block D of PLOT 57B ISMAIL ROAD MBUYA and an easement/access road which goes through the land which is entirely the property of the applicants/ defendants.

 

3. Issues framed for determination by the parties and Court

 

  1. Whether the plaint discloses a cause of action.

 

  1. What are the remedies in the circumstances?

 

4. Submissions by the parties

 

Counsel for the respondent in his length submissions argued that the plaintiff’s plaint discloses a cause of action. He relied on a number of authorities in his submissions. In reply Counsel for the applicants does not agree with the submissions by Counsel for the respondent. Counsel for the applicants argued; that:-

 

  • First the affidavit of Desire Kamanzi in reply particular submissions in paragraph (xiii) (i). Our response here is that until wrong statements are corrected/clarified they are subject to adverse comments by the other party.

 

  • In paragraph (v) of the submission, paragraph 3 from top on page 6 it  is submitted, strangely that it is not counsel who deponed to affidavit in reply but the said Desire Kamanzi.

 

  • If an advocate cannot depone an affidavit on contentious matters, he equally cannot be the source of contentious facts relevant to the case. Definitely in paragraph (vi) at page 6, the contents of the affidavit complained of are definitely hearsay.

 

  • In response to paragraph (xiii) at page 3, the applicants contend that mere wrongly approving plans by KCCA does not create any right in favour of the respondent/plaintiff.

 

  • In response to paragraph (xiiii) at page 5 of the submissions, the applicants contend that an access road to the construction of the respondent/plaintiff did not exist at all and it is the action of the plaintiff forcibly trying to construct one that gave rise to complaints to KCCA by the applicants.

 

  • In response to paragraph (vii) at page 6 at the bottom paragraph, the applicants contend that Counsel for the respondent seems to intentionally avoid the letter from the KCCA following the visit to the site by both parties and KCCA officials, the contents of which appear at pages 9-10 in our main submissions.

 

  • As they submitted in the main submission the A/g Director Physical Planning had this to communicate to the parties:-

“(i) Height of the building, the swimming pool and terrace block which is being constructed directly in front of the Fowler residence and infringing on their privacy.

(ii) access, the designed drive way to plot 57B is part of the land acreage that constitutes plot 57A contrary to its direct access from Ismail road.

 

The site meeting confirmed that the issues above (i) and (iii) are genuine and resolved on the following;

  1. Construction works on the swimming pool and terrace black should be halted until the matters raised are resolved.
  2. Construction works on other blocks can continue. However, the entire construction project will be subjected to extensive audit by KCCA building inspectors to ascertain the level of compliance to submitted drawings”.
  • Counsel also ignored the blue print to the land title of the applicant which clearly shows that the disputed driveway is entirely part of the acreage of the applicants’ title annexture “A” to the affidavit in support of the chamber summons.

 

  • Also learned counsel seems to have ignored annexture “E” to the affidavit of Harriet Fowler in support of the chamber summons.

 

The A/g Director Physical planning in his letter to former Counsel for the applicant M/s Katarikawe & Co. Advocates had this to say:-

“ it is recommended that the issue of privacy can be addressed by erecting a perimeter wall of 1.5 meters height along the disputed area in replacement of the existing chain link fence and that, any access through your clients land to plot 57B is unacceptable unless with your clients consent”.

 

5. Resolution of the above issues by Court

 

Whether the plaint discloses a cause of action, Counsel for the applicants submitted that the plaint is frivolous and vexatious and that as such the plaint does not disclose the cause of action against the applicants/defendants. In his arguments he relied on the affidavits evidence adduced by both parties. As already stated hereinabove in this ruling, Counsel for the respondent/plaintiff rubbished the arguments by counsel for the applicants.

 

The law concerning causes of action in suits is well settled in case law.

 

In the case of MULINDWA BIRIMUMASO VS GOVERNMENT CENTRAL PURCHASING CORPORATION HCCS 674/98, [2004] 348 KALR (REPORTED)- the Court of Appeal for Uganda defined the term ‘Disclosure of cause of action’ as follows;-Authority N0.6

“I would begin with consideration of the meaning ‘disclosure of cause of action’, In ISMAIL SERUGO (SUPRA) Hon Justice Mulenga discussed the matter as follows:-

“A cause of action in a plaint is said to be disclosed if three essential elements are pleaded; namely, pleadings (i) of the existence of the plaintiff’s right, (ii) of violation of that right, and (iii) of the defendant’s liability for the violation. In AUTO GARAGE VS MOTOKOV (N0.3) (1971) EA 514D, after reviewing a line of precedents SPRY VP.put it thus:- “I would summarize the position as I see (it) by saying that if a plaint shows that the plaintiff enjoyed a right, that right has been violated and that the defendant is liable, then, in my opinion, a cause of action has been disclosed and any omission or defect may be amended. If on the other hand, any of those essentials is missing no cause of action has been shown and no amendment is permissible.

A reasonable cause of action on the other hand, has been describe as a cause of action which, in light of the pleadings, has some chance of success; See DRUMMOND JACKSON VS BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 668.”

The Court also succinctly set out what a court looks at when considering whether a Plaint raises a cause of action or not under order 7 rule 11 CPR as follows;

“It is now settled law that when a court is considering whether a plaint raises a cause of action or not, under Order 7 Rule 11 it must only look at the Plaint and its Annextures. See N.A.S Airport Service Ltd vs. Attorney General of Kenya [1959] EA 53 & Wycliffe Kiggundu vs. Attorney General Civil Appeal N0.27 of 1992 (SC) unreported.”

A reference in a document to an annexture incorporates the contents of the annexture in the document. See the case of CASTELINO VS RODRIGUES (1972) CA, 223 - Authority N0.7

See also a case of AUTO GARAGE & ORS VS MOTOKOV [1971] EA 514 at page 519- AuthorityN0.8

Order 7 Rule 11 of CPR SI 71 - 1 provides;-Authority N0.4

“11. Rejection of a Plaint

The Plaint shall be rejected in the following cases -

  1. Where it does not disclose a cause of action;
  2. Where the relief claimed is undervalued and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
  3. Where the relief claimed is properly valued but an insufficient fee has been paid, and the plaintiff on being required by the court to pay the requisite fee within a time fixed by the court, fails to do so;
  4. Where the suit appears from the statement in the plaint to be barred by an law;
  5. Where the suit is shown by the plaint to be frivolous or vexatious.

S.98 of the CPA CAP 71 provides for saving of inherent powers of court and it states as follows; Authority N0.2

“Nothing in this Act shall be deemed to limit or otherwise affect their inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

What then did the plaintiff/respondent in this case plead in the Plaint?

He pleaded, that:-

“(4) The Plaintiff’s claim against the defendants jointly and severely is for a declaration that the defendants’ actions of attempting to block developments/construction of commercial premises and an easement and or access road to the plaintiff’s premises comprised in plot 57B next to plot 57A Ismail Road Mbuya are wrongful and illegal, permanent injunction against the defendants, special damages, general damages and costs of the suit.

(5) The facts constituting the cause of action arose as follows;-

  1. The plaintiff is the owner of PLOT 57B ISMAIL ROAD, MBUYA. (Refer to Annexture “A”)
  2. On 24/2/2012, the plaintiff was granted a demolition permit and for the buildings and a hoarding and scaffolding permit respectively on the above mentioned property by Kampala Capital City Authority and on 27/02/2012, the plaintiff was granted a permit to commence works on the said Plot 57B, and Block D by the KCCA. (Refer to annexture “B” and “C” respectively attached hereto).

 

  1. On the 29th day of August 2012, KCCA renewed the permit for the construction of the entire plot but specifically confirmed the works on Block D of the plaintiff’s property issued to the plaintiff a renewal of permit to commence construction works on the suit property. (Refer to annexture “D” attached).

 

  1. The said renewal of permit to commence construction work contained a suspension of construction works on Plot D of the suit land allegedly on grounds of infringement of privacy pursuant to a complaint from the defendants to KCCA and indeed the works were forth with stopped by KCCA at the instance of the defendants and basing on the baseless complaint by the defendants.

 

  1. The suspension was despite the plaintiff having duly complied with all the conditions set by KCCA and having taken all the necessary measures to ensure good neighborliness during the construction period and granted approved plans by KCCA and despite the involvement of KCCA supervising and approving of the said works on a regular basis. (Refer to Group Annexture “E” attached hereto).

 

  1. Following a complaint by the plaintiff to KCCA about the defendants’ baseless complaints and accusations of infringement of privacy and the defendants’ continuous blockage of the access road, on 4/10/2012 issued for resumption of works on the plaintiff’s site albeit the damage already meted on the Plaintiff by the suspension of works on the plaintiff’s premises by KCCA solely at the instance of the defendants.

 

  1. Despite, resumption of the works lawfully, the defendants have instead lodged several complaints without justifiable cause against the plaintiff’s works and are attempting to close the easement being an access road from Ismail Road serving both the plaintiffs and the Defendants premises and which easement is largely occupying the plaintiff’s land.

 

  1. The Plaintiff’s property is in a prime residential area of Mbuya in the City of Kampala and has a unique commercial value of the commercial rented 30 units of apartment blocks whose access is strategically located and provided for by the City Planning Authority to comprise of two separate access roads, the first being right into Ismail road and the second being into an access road off Garuga Close shared by both the plaintiff and the Defendants, and the Defendants have actively attempted to block the said easement and any form of development of the common services to the residents of 30 apartments belonging to the Plaintiff.

(6) The Plaintiff shall contend and that the alleged suspension and stoppage of construction works on Plot D by KCCA at the instance of the defendants was unlawful, illegal and unjustified and the Plaintiff holds the defendants jointly and severally liable for damage suffered by the Plaintiff due to delay in construction from the date of suspension of works by KCCA on 29/8/2012 to the date of resumption of the works on 4/10/2012.

(7) If the defendants are not permanently restrained from further making baseless and unjustified complaints to the authorities, the Plaintiff will suffer further great damage and loss the defendants are jointly and severally liable for the loss caused to the plaintiff thereafter.

(8) The Plaintiff contends that due to the defendants’ actions above, the Plaintiff has suffered special damages for which he holds the defendants jointly and severally liable.

 

 

Counsel for the applicants submitted that the plaintiff/respondent filed an affidavit in reply dated  7th /March/2013, deponed by Desire Kamanzi with which they have many quarrels with especially paragraphs 4, 6 &7 as emphasized as follows:-

Para 4, that in reply to paragraphs 7,8,9,10,11 &12 of the first applicant’s affidavit, I am advised by the applicant’s lawyers Geoffrey Nangumya & Co. Advocates and which advice I verily believe to be true that it is not true at all or at law that the applicants are registered proprietors of the easement road drive subject of the suit as the driveway commences from other registered proprietors off Ismail road not the applicants and the latter cannot therefore claim it.

Para 6, that in reply to paragraphs 13,14,15 & 16 of the 1st applicant’s affidavit, I am advised by the applicant’s lawyers Geoffrey Nangumya & Co. Advocates and which advice I verily believe to be true that despite resumption of the works lawfully, the cause against the respondents/plaintiff’s works and are attempting by use of parking motor vehicles, to close the easement being an access road from Ismail Road serving both the respondent/plaintiff and the respondents/plaintiffs’ land and is the only approved access to Block D of the respondent’s premises and this suit was filed on  the basis of enforcing the Respondent’s right to an easement and the injunctions sought are consequential orders thereof not as the 1st Applicant alleges and the Plaint discloses a cause of action but the counterclaim does not.

Para 7, that in further reply to paragraphs 13 ,14,15 and 16 of the 1st applicant’s affidavit, I am advised by the applicant’s lawyers Geoffrey Nangumya& Co. Advocates and which advice I verily believe to be true that the plaint discloses a cause of action and has a high likelihood of success and therefore this Honourable court should not reject the same and the Applicant’s counter claim does not disclose a cause of action against the respondent and instead it is the applicants’ counterclaim and this application that should be rejected by this Honourable court for being frivolous, vexatious and misconceived in law and instead it is the respondent who will suffer irreparable damage if his plaint is rejected and if he is denied his right to an only approved easement to part of his property being Block D thereof and the substantial amount of investment he has sunk in the premises.”

I have considered the above concerns raised by Counsel for the applicants and I am of the considered opinion that:-

  1.      of all the deponent claims to be advised by the applicants’ lawyers which are not true. Much as he mentions Geoffrey Nangumya there is a serious contradiction.
  2.      The deponent is deponing to facts in controversy and there is no disclosure where they got the information from.
  3. Counsel for the respondent can neither depone to nor advise the witness on facts in controversy on behalf of his Client.

In the case of CHARLES KABUNGA VS CHRISTOPHER BARYARUHA & 3 ORS [1995] KALR 535,it was held in holding N0.1:-Authority N0.9

“(1) an advocate is not allowed to depone to matters that are not purely formal or contentious as per r8 of the advocates (professional conduct) regulations 1977. When counsel deponed to the value of the land he was deponing to a contentious matter since this was not a formal fact in his knowledge. Therefore his affidavit was materially defective and would not be relied upon in court.”

See also the case of BANCO ARABE ESPANOL VS BANK OF UGANDA SCCA NO.23/1998, 17 – 18.

There is a lot of hearsay in the Affidavit in reply deponed to by Desire Kamanzi.

In the case of MAYERS & ANOR VS AKIRA RANCH LTD [1974] EA 169 it was held in holdings (iii) and (iv); that:

“(iii) parts of the affidavit were hearsay and inadmissible as evidence;

(iv) to retain inadmissible matter in an affidavit would be oppressive and it would therefore be struck out.”

I now consider the pleadings and Annextures thereto filed by the plaintiff/respondent in the light of the above authorities.

I begin with the proposed access road.

The pertinent question now is, does the plaintiff/respondent have the right protected by law in the disputed access road.

 

In Paragraph 5 (vii) of the Plaint, it’s claimed that the easement being an access road  from Ismail Road serves both the Plaintiff’s/Respondent’s and the defendants/applicants’ premises and that it’s largely occupying the Plaintiff’s land.

 

However, this is not true because of the following clear evidence that it’s part of the acreage of the applicants/defendants land.

 

In Paragraph 4 of the Plaint the plaintiff/respondent seeks for a declaration that the defendants actions of attempting to block developments/construction of commercial premises and an easement and or access road to the Plaintiff’s premises comprised in Plot 57B next to Plot 57A Ismail Road are wrongful and illegal.

 

Plot 57A Ismail Road Mbuya belongs to the applicants/defendants and it has a Land Title. The blue print of that title clearly shows that access road to Plot 57A is entirely part of the acreage of the applicants/defendants’ land. See Annexture “A” to the Affidavit of Harriet Fowler in support of the Chamber Summons.

 

Secondly, in Paragraph 5 (iv) to the Plaint the plaintiff/respondent complains of a decision by KCCA suspending construction work.

This decision was communicated to both Parties in a letter by the Ag. Director Physical Planning which I hereby reproduce in full herebelow:-

“Kampala Capital City Authority

DIRECTORATE OF PHYSICAL PLANNING

P. O. BOX 417

KAMPALA

UGANDA

TELEPHONE: 231441

IF ANY FUTURE CORRESPONDENCE

PLEASE QUOTE

 

Our ref: DPP/KCCA/1701/05

 

August 8, 2012

Martin & Harriet Fowler

Plot 57A Ismail Road

Mbuya.

Busingye Properties Ltd

Plot 57B Ismail Road

Mbuya.

 

Re: COMPLAINT ON CONSTRUCTION AT PLOT 57B ISMAIL ROAD, MBUYA.

 

I refer to the above mentioned subject and the site meeting held on august 6, 2012, to resolve the issues raised by the Fowler family, who are the registered proprietors of Plot 57A Ismail Road that is directly behind Plot 57B Ismail road, Mbuya. The issues are:

 

  1. Height of the building; the swimming pool and terrace block which is being constructed directly in front of the Fowler residence and infringing on their privacy.
  2. Access; the designed drive way to Plot 57B is part of the land acreage that constitutes Plot 57A contrary to its direct access from Ismail Road.

The site meeting confirmed that the issues above (i) and (ii) are genuine and resolved on the following:

  1. Construction works on the swimming pool and terrace block should be halted until the matters raised are resolved.
  2. Construction works on other blocks can continue. However, the entire construction project will be subjected to extensive audit by KCCA building inspectors to ascertain the level of compliance to submitted drawings.
  3. The Fowler family and Mr. Busingye properties Ltd should engage in dialogue as good neighbours to resolve the issues and thereafter notify KCCA on the arrangements agreed.
  4. In the event, that dialogue between the two parties is not successful, KCCA shall invoke the law and determine the issues raised.

This is to inform you of the resolutions agreed upon in the site meeting and to further encourage both parties to resolve the matter amicably and conclude the negotiations within a reasonable time.

Joseph Ssemambo

Ag. DIRECTOR PHYSICAL PLANNING

 

CC.             Director Legal Affairs

                   Supervisor Development Control

M/s Katarikawe& Co. Advocates”

 

See annexture “D” to the Affidavit of Harriet Fowler in support of the Chamber Summons. The above mentioned letter from the KCCA to the parties is very clear on the parties’  respective rights in respect to the suit land. The decision of KCCA on this dispute settled the said dispute. I then wonder why the plaintiff/respondent filed this suit in Court against the applicants/defendants. If the respondent was aggrieved by the decision of KCCA; then the respondent should have sued KCCA instead of the applicants.

 

Clearly, the height of the building, the swimming pool and the terrace block D which has been constructed in front of the Fowlers’ residence infringes on their privacy. Also the designed drive way to Plot 57B is part of the land acreage that constitutes Plot 57A, connecting direct to Ismail Road. In fact, it’s the above decision that prompted the plaintiff/respondent to file Civil Suit N0.611 of 2012. What would the applicants/defendants violate by complaining to KCCA that their property is being encroached on? They submitted none. Lastly, how do the applicants/defendants be liable for reporting to KCCA that their property is being encroached on?

 

Article 26 of the Constitution of the Republic of Uganda the applicants/defendants have a constitutional right to their property, the exercise of which cannot constitute the plaintiff/respondent’s cause of action.

 

On infringement to the privacy of the applicants/defendants by the plaintiff/respondent

From the communication by KCCA (supra) it is clear that at the site-joint meeting it was confirmed that the height of the building, the swimming pool and the terrace block which is being constructed directly in front of the Fowlers’ residence infringes on their privacy.

 

The pertinent question again is, what right protected by the law that the plaintiff/respondent has to infringe on the privacy of the applicants/defendants privacy? My answer would be “none”. The dispute was clearly settled by KCCA, which decision the respondent refused to adhere to. The respondent/plaintiff without carefully studying his case filed a suit against the applicants/defendants.

 

Under Article 27 of the Constitution of the Republic of Uganda the applicants/defendants have constitutional rights to privacy. The defendants/applicants are just fighting in defence of their rights.

 

In this ruling allow me to talk about the role of KCCA in its endeavours to settle the dispute between the parties

There are several otiose statements in the pleadings to the effect that KCCA sanctioned the construction including the easement. KCCA approved the plaintiff/respondent’s building plans without consulting the applicants/defendants as immediate neighbours.

 

When the applicants/defendants complained, a joint site meeting of 6th August, 2012 was convened and after the meeting the Ag. Director Physical Planning communicated to both parties the decision of KCCA.  The said communication already produced hereinabove in this ruling.

 

KCCA has rules that guide it when approving building plans. Relevant to this ruling are the Public Health (Building) Rules particularly rules 10 (k) and rule 28.

Rule 10(k) inter alia, provides:-

“10. Grounds on which local authority may disapprove of plans.

  1. The local authority shall disapprove of any plans on any of the following grounds-
  1. That the proposed building is to be used for any purpose which might be calculated to interfere with the convenience or comfort of neighbouring occupiers; except that the person whose plans are returned on this ground may appeal to the minister, who shall thereupon either confirm the decision of the local authority or direct it to issue approval.”

And rule 28 provides,

“28. Plot frontage

A building shall not be erected on any plot which has not proper and sufficient access to a road or road reserve, such road or road reserve not being a sanitary lane or passage.”

Under sub-rule 10(k) KCCA could not sanction construction that would infringe on the privacy, convenience and comfort of the neighbours who are the applicants/defendants.

 

As regards the easement KCCA is bound to respect the applicants’/defendants’ constitutional right to property. So should the respondent respect the applicants’ rights over their property.

The respondent advanced an argument that it is lawful for the plaintiff/respondent to open access road (drive way) through the land of the applicants/defendants property.

 

Paragraph 5 (viii) of the Plaint says it all as to what kind of easement (access road) the plaintiff/respondent wants to construct through the land of the applicants/defendants.

It runs:-

“Para 5(viii)The Plaintiff’s property is in a prime residential area of Mbuya in the City of Kampala and has a unique commercial value of the commercial rented 30 units of apartment blocks whose access is strategically located and provided for by the City Planning Authority to comprise of two separate access roads, the first being right into Ismail road and the second being into an access road off Garuga Close shared by both the plaintiff and the defendants, and the defendants have actively attempted to block the said easement and any form of development of the common services to the residents of 30 apartments belonging to the Plaintiff.”

 It was submitted by Counsel for the applicants/ defendants that it is not true that the alleged access road off Garuga Close is shared by both the plaintiff/respondent and the defendants/applicants. Where is the provision by the planning authority for the property of the plaintiff/respondent to comprise of two (2) separate access roads? It’s not pleaded anywhere in the plaint and all its Annexures. Facts in the pleading speak for themselves. From the facts of the case and the affidavit evidence adduced by the parties, the respondent has an access road to his property to Ismail Road, that serves his plot 57 B. Thus the claims by the respondent in the plaint to have another access road through the defendants’ plot 57A is not only frivolous and vexatious but also amounts to trespass on the defendants’ property. Hence, the defendants’ lives and property must be protected under this ruling.

 

If the plaintiff/respondent has in mind the Access Road Act Cap 350, allow me to  proceed to answer on it briefly, Section 2 provides;

“S.2 Application for leave to construct a road of access.

  1. Where the owner of any land is unable through negotiations to obtain leave from adjoining landowners to construct a road of access to the public highway, he or she may apply to the land tribunal for leave to construct a road of access over any lands lying between his or her land and the public highway.”

 

In the first place the plaintiff/respondent already has access to Ismail Road. There is no legal ground to warrant him force his way through the applicants’ land. This is not an application under this Act which automatically rules out the application of the Access to Roads Act to the application before Court. It is selfish, unjust and unfair to inconvenience others and even go to the extent of grabbing part of their property to maximize profits on one’s land.

 

Under Article 43 of the Constitution of the Republic of Uganda, in the enjoyment of the rights and freedoms described in the constitution no person shall prejudice the fundamental or other human rights and freedoms of others or public interest while enjoying their rights.

 

In the premises, I hold that the respondent’s/plaintiff’s plaint does not disclose a cause of action against the defendants/applicants.

 

5.2Issue no.2: what are the remedies available to the applicants/defendants?

 Having found that the plaintiff/respondent has no cause of action against the applicants/defendants, certainly, therefore, they are entitled to the orders being sought in this application. Indeed, this application has merit. It ought to succeed

 

 

6.  Conclusion

6.1 Finally, I have exhaustively considered the submissions and affidavit evidence by both parties and I find that this application has merit. it ought to succeed as against the respondent/plaintiff.

 

6.2 In the result and for the reasons given hereinabove in this ruling, this application is accordingly allowed in the following orders; that:-

  1. The plaint does not disclose a cause of action against the applicants/defendants. The plaint is hereby rejected and struck out.
  2. In view of (a) above, Civil suit no. 611 of 2012 is accordingly dismissed with costs to the defendants.
  3. This application is allowed in the terms and orders being sought therein with costs to the applicants.
  4. The counterclaim being an independent suit shall proceed on hearing interparties before another Judge of this High Court of Uganda, Land Division, since I am on a transfer to the Criminal Division of the High Court of Uganda.

 

Dated at Kampala this  28th day of May, 2013.

 

_________________________

Murangira Joseph

Judge