Marihera v Mwesigwa and 3 Others (Civil Appeal 52 of 2017) [2024] UGHCLD 201 (31 July 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### [LAND DIVISION]

## CIVIL APPEAL NO. 0052 OF 2017

# [ARISING FROM CIVIL SUIT NO. 247 OF 2008 - IN THE CHIEF MAGISTRATES **COURT OF NAKAWA AT NAKAWA]**

# **GEORGE MARIHERA**

**APPELLANT**

$\mathsf{V}$

- 1. MWESIGWA BARNABAS - 2. MAYOMBWE WILBERFORCE - 3. EKEMU FLORENCE - 4. CHEROTICH CAROLYN

#### **RESPONDENTS**

### BEFORE: HON. LADY JUSTICE P. BASAZA - WASSWA

# **JUDGMENT**

### Representation:

Mr. Kasibante Leonard1 for the Appellant.

Mr. Bwesigye Enock2 for the Respondents.

#### Introduction:

[1] This Judgment is in respect of an Appeal by Mr. George Marihera (the Appellant), against the Decision of the Chief Magistrate: His Worship Ereemye Jumire James

Masalulumma 3/7.

&lt;sup>1 Of M/s Rwakafuuzi & Co. Advocates

&lt;sup>2 Of M/s Mwesige Mugisha & Co. Advocates

Mawanda, dated 201122016, vide C/s No. 0247 of 2008 - in the Chief Magistrates Court of Nakawa at Nakawa. C/s No. 0247 of 2008 shall hereinafter be referred to as'the original suit', while the said Decrsion appealed against shall be referred to ai 'the impugned Decision')

- a2l The original suit was filed by Mr. Ivlwesigwa and 3 others (the Respondents herein), by which they contended that they had access to the public Highway through an access road. That in the latter part of 2007, without reasonable ground, the Appellant: Mr. lvlarihera, blocked the access Road by heaping thereon building materials. They sought an order from the trial court that Mr Marihera opens the access road - that there was never an alleged access Road to a public highway, through his land. He claimed that Mr. Mwesigwa; (the 1s' Plaintiff in the original suit) had alternative means of access from his property to the Highway which he continues to utilize t31 ln answer, in his amended written statement of defence, Mr. Marihera contended that he is the private land owner of Kyadondo Block 232P\o|1228 at Kireka, and - t41 All the parties in this matter are neighbours rn Kireka LC 1 Zone C, within Kira Town Council in Wakiso District.

### lssues framed at the trial

- t51 Two issues were framed: - Whether an access road exists? 1 - 2. Whether there are any remedies available to the parties?

2 rkrrhU,^-t^^{ ,|h '

# The lmpugned Decision:

t6l Upon hearing the original suit, the learned Trial Chief Magistrate delivered the impugned decision in favour of the Plaintiffs / Respondents: Mr. lVlwesigwa and 3 others. He held issue No. 1 in the affirmative; that there existed an access road. He reasoned that the evidence showed that the access road existed long before lvlr. Marihera purchased his Plot, and that the access road was being used and enjoyed by the Plaintiffs (Respondents herein) until it was blocked. He ordered Mr. Marihera to vacate lhe access Road, and granted to the Respondents general damages of UGX. 3,000,000/= (three Million) plus the

costs of the original suit.

### Grounds of Appeal:

- l7l The Appellant preferred ten (10) grounds of appeal, namely - 1. That tho loamed trial Magistrate €ned in law and fac't when he docidod the suit on a new issue of estoppels that was not befor€ the court by way of pleadings, evidonco or even submissions. - 2. That the leamed trial Magisbate ened in law and fac:t when he failed to oonsider and proporly scrutinize and evaluate the evidence of the Appellant as a whol6 and in so failing, thereby came to a wrong conclusion.

fu<rrhJrar,^^^^- ltll .

- 3. That the learned trial Magistrate erred in law and fact when he failed to appreciate the facts and issue at hand thereby reaching a wrong conclusion. - 4. That the learned trial Magistrate erred in law and fact when he disregarded the Appellant's Constitutional right to his property as enshrined under Article 26 of the Constitution of the Republic of Uganda. - $5.$ That the learned trial Magistrate erred in law and fact when he relied on mere statements on the record of the $2^{nd}$ , $3^{rd}$ & 4th Plaintiffs and a one Herbert Nsubuga to determine the suit. - 6. That the learned trial Magistrate erred in law and fact when he failed to appreciate the principles of law governing creation of easements thereby reaching a wrong conclusion. - $7.$ That the learned trial Magistrate erred in law and fact when he failed to appreciate the difference between a footpath and a road thereby reaching a wrong conclusion. - 8. That the learned trial Magistrate erred in law and fact when reaching his Decision, he engaged in conjecture and speculation thereby basing his decision on erroneous assumptions not supported by the evidence on record.

Magnitummy 31/7.

$\overline{4}$

- 9. That the leamed trial Magistrate ened in law and fact when he relied on documents of no evidential value and of an illegal proooss / exercise to reach a wrong conclusion. - 10. That the leamed trial Magistrate €rred in lan and fac't when he concluded as a result of blockage. that the licensed footpath to th€ Respondents was not accessible by foot - t81 I will combine and handle grounds 2,3,4,5,7, 8, I & 10 together as they are all grounds preferred against the evaluation of evidence by the learned Chief Magistrate. Grounds 1 & 6 will be addressed singly.

## Submissions by Counsel

I have duly considered. For brevity, I will not reproduce their arguments here, I will only refer to them if / where necessary. 191 Learned Counsel for each party respectively filed their written submissions that

Consideration of Grounds 2 3 4 5 7 8,9&10

t10l ln accordance with settled law and practice (see DinKenai R. Pandya v Rs), I have dutifully and carefully re-evaluated and weighed the evidence on the court record of the original suit, together with all the supporting documents produced by each party. I have also dutifully and carefully analyzed the impugned decision, looked at the sketch Map of the locus in quo, and considered the

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3[1957] E. A at pages 336 - 340

arguments for and against this appeal, together with the authorities therein cited, and the pertinent law

- tl 1l Learned Counsel of the Appellant argued that there was a footpath that run over the Appellant's land which he licensed his neighbors to use, and that they are still using it, it is not blocked - l12l ln reply, learned Counsel of the Respondents submitted that what was before the trial court was not an application for the creation of an access road on the Appellant's land, but rather was a pray that the Appellant opens an access road that exists adjacent to the Appellant's land, on the upper part, and not in his land. - t13l The evidence in the original suit shows that it is common to both parties the Appellant: Mr. Marihera, and the Respondents: Mr. Mwesigwa & 3 others, that: - i) By an agreement dated January 18, 1993 (EXB D 2) between Mr. Ivlarihera and a one Nsubuga Herbert, Mr. I\ilarihera bought a Plot of land at Kireka LC 1 Zone C, described as stretching from the road inwards bordering Mr. Mayombe (width) and Mr. Kagugube to the South ('Hereinafter referred to as: 'the Plot'). - ii) That in the year 2007 Mr. Marihera heaped building materials on the disputed alleged access Road, for his intended use for construction.

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- 1141 ln his evidence, Mr. Marihera (DW 1) contends that when he bought the Plot, there was never an access Road to Kagugube Road and to Nambole Road, a public Highway. That he found 'a footpath' in the middle of the Plot, and that he transferred it to the upper part thereof. That he permitted Mr. Mayombwe (the 2.u Respondent) to use the 'footpath' and that the latter therefore had a right to use it. That he deposited the building materials on his land (the Plot), which were in the form of sand, aggregates and hard core stones, which he used to construct his second house. That the'footpath'is still running over the Plot and is used by the 2nd, 3d & 4rh Respondents - t15l On his part, Mr. Barnabas Mwesigwa (PW 1) stated that since 1995, he used the disputed access Road which he said run through land adjoinitrg the Plot. That the said land (hereinafter referred to as'the suil land') neither belonged to Mr. Marihera, nor to the LCs. That it was a community access road

That in 2007 Mr. Marihera blocked the suit land with his building materials and that they informed the LCs who asked him (lvlarihera) to remove the said materials. That vide an agreement dated 06/01/08 marked 'Ca', Mr. Marihera requested for a month to remove his building materials from the suit land. He asserted that he did not use the alleged footpath running over Mr. Marihera's Plot (the Plot), and that he does not know it

t+gt^N ^rr,,--\* 3ll7 .

! The agreement of 06/01/08 was admitted by the trialCourt, but by omission not marked as an exhibit. Refer to the consensus on this point reached by both Counsel while before this Coun, durinS the Appeal proceedings. - the latter bought the Plot in 1993, 'an access Road was in place and being used by all the neighbors. That the access Road was changed to the end of the Plot, but was later blocked by Mr. Marihera with stones, sand and tap water t16l Similarly, Mr. Mukaga Godfrey (PW 2) stated that he was a witness to the sale of the Plot between Mr. Nsubuga Herbert and Mr. Marihera. That at the time - l17l Annextute 'C' dated 06/01/2008, suggests from its title and content, that it was an agreement made before the LC 11 committee. lt reads, verbatim, as follows'.

'Conclusion of Access Road between i/r. Marihera and his neighbors, Hajii Mwebe, as Chairman ol the day, helped by Mr. Kagugube G and Mambuka and other neighbors.

Mr. i/arihera has agreed and accepted that the Access Road should remain as it was before, about my 1sl4 materials, he has requested the court and the complainants to allow him to use it thereafter wards is going to clear their way for the betterment of the village and neighbors for about 'l month lo be clearcd' . (sic)

Signed- George i,rarihera'Accused'

Signed Mwesiga Barnabas

(0772552046\

Mayombwe Wilberforce

Ekemu FlorBnce

Cherotich

Signed Mukaga Godfrey on behalf of Teddy

Signed by CHAIRMAN 11

Hajji Mwebe

Signed By CHAIRMAN 1

Mr. Kagugube 6/Jan/08

Signed By Vice

It rg, r.. L)r,4",,,^^^..8 7l 1

i.4rs. Getu Kibuuka

Signed By Secretary

Mr. Mambuka D l\,4 06/01/08

- t18l On the basis of the said document marked 'C' whose content was uncontrovorted, and also on the basis of the evidence of Mr. Marihera, and of PW I and PW 2, it i8 plainly appar€nt to me that thene was an access road on the suit land. lt is further apparent that such access Road was used by the neighbors of Mr. Marihera, and was later blocked by him using his building materials. - t19l ln these premises, I thus concur with the lindings of tho leam€d Chiof and was for a long time used and enjoyed by the PlaintifE (Respondents herein) until it was blocked by the Appellant. Magistrate. He conectly found that the accass road existed on tho suit land - t20l Iam alive to the fact that in the year 2008, the time that the said Document marked 'C' was drawn, the LC 1 and 11 Committee courts were not legally constituted as courts or committeess. That notwithstanding, I take cognizance that the document marked'C'is valid. This is on the basis that its content / wording connotes that it was not a court order by any of the LC Committee

# rrarr"lJ,-^r,^ ^"^- 3th

tSee Rubaramira Ruranga v. Electo.al Commission & Anor-Constitutional Petition No. 1 of 2006 [20081 1 E. A pjlD to the effect that the village (LC1) & Parish or ward Local Council Committees (LC 11) in place at the time were not validly constituted, their members having been elected under the movement Political system that had ceased to exist after the Amendment of the Constitution in 2005, and not under the Multiparty Political system. That their elective term had expired.

For further reference on the mandate and lurisdiction of LC Courts at the time under review, also see the Court of Appeal Decisions in and Nalonro Burashe v Xekitiibwa Mansadalena C/Apleal No. 89 of 2011.

Courts, but rather, it was an amicable understanding / settlement reached between Mr. Marihera and his neighbors. The settlement was indeed witnessed, not iust by the erstwhile LC Committee members, but also by other members of the community. The document offers cogent proof, on a balance of probabilities, that an Access Road existed on an adjoining piece of land (the suit land), as contended by the Respondents, and not on the Plot belonging to the Appellant

- l21l Mr. tr/arihera claimed in his testimony that he was Torced to agree'to remove his building materials. He however did not substantiate that assertion. He neither showed how he was allegedly forced, nor who allegedly forced him. - l22l As it is, Mr. Marihera's admission that he placed building materials in the disputed access road, served as corroboration of the assertions by the Respondents that they had used the Access road for many years since 1993 / 95, and only begun to complain after the said materials were placed across their way, blocking it - l23l f n the result, Grounds 2,3, 4, 5,8, I & 10 of lhe Appeal fail.

#### Ground 1

That the leamed trial Magisbate enod in law and in fac.t when he decid€d the suit on a n6,v issua of estoppels that was not before the court by way of pleadings, ovidencs or €v6n submissions

NrcLl^J,-,^,v'.-{ 3th

- l24l The Appellant's Counsel did not make any submissions on this Ground. lt appears he opted to abandon it. - l25l The principle of Estoppel is inter atia a basic principle of evidence embodied in Section 114 of the Evid€nc€ Act6. It can also be pleaded as a defence ln this present matter, the learned trial Chief Magistrate correctly applied that principle. - 126l As per that principle, Mr. Marihera cannot be allowed, in any suit or proceeding between himself and his neighbors, to renege on, and deny the existence of the access road which he had duly acknowledged in the document marked as'C' He cannot also be allowed to deny his own undertaking therein, that he would many years. He is indeed estopped remove and unblock the said access Road that was used by his neighbors for - l27l Ground 1 also fails

#### Ground 6

'That the.leamed trial Magistrate erred in law and fact when he failed to appreciate the principles of law goveming cr€ation of easemonts thereby reaching a wrong conclusion'.

t28l Learned Counsel of the Appellant argued that an access road is created either legally or equitably. That the Respondents do not show how they came to

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6Cap. 8 of the revised Laws of Uganda - 2023

acquire a right of way over the Appellant's land. He questioned how the Local own? He argued further that no one owns the land over which the claimed that there is a footpath over the Appellant's land. Council authorities could have created legal rights over property they did not access road passes. That during cross - examination, PW1 acknowledged

- t29l ln rebuttal, learned Counsel of the Respondents argued that what was before the trial Court was not an application for; 'creation of an access Road on the Appellant's land'. That the prayer was for; 'an order that the Appellant opens the access road that exists on the land adjacent to the Appellant's land on the upper part'. - t30l My analysis on grounds 2,3,4,5,8, I & '10 also applies to this ground. The question for determination before the trial court was thether an aooess road existed'. The learned trial Magistrate correctly found in the affirmative. The borne of contention, as rightly pointed out by the Respondents' Counsel, was not whether or not to allow the Respondents leave to create an access Road. - t31l Had the question before the trial court been; \rhether or not to grant loave to the Respondents to create an access Road', the provisions of sections 2 & 3 of the now repealed law: The Access to Roads Acl, Cap 350 would have applied - l32l Currently the applicable law is sec. 60 of The Roads Act7. Under sec. 60 of the Roads Act, the procedure is that; 'subject to holding the prerequisite fr.g<^rJ^J^a^ ^r^.^,-" al]

1,2

7The Roads Act Cap. 345 of the Laws of Uganda - 2023, commenced on September 25, 2019

negotiations with adjoining landowners, the owner of any land may apply to the Ministers for leave to construct an access road over any land lying between the land of the landowner, and a public highway.

That was however not the matter before the trial court.

t33l Ground 6 is thus misplaced and accordingly also fails

## Decision and Orders of this Court:

t34l By reason of the foregoing, this appeal is disallowed. The Judgment and Orders of the learned trial Chief Magistrate in the Original suit: No. 247 of 2008 are hereby upheld in their entirety

The costs of this Appeal are awarded to the Respondents against the Appellant.

### (Sec. 27 of the Civil Procedure Ac{, applied).

I so Order,

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## P. RASATA. WASSWA JUDGE

July 31.2024.

Judgment delivered electronically on the Judiciary ECCMIS Portal and via email to the parties. Email to: klcosby@yahoo.coE, kalr@utlonline.co.ug for the Appellant and to (no email provided) for the Respondents

3The Minister responsible for Roads