Mutezi v Aganya (Originating Summons 6 of 2024) [2024] UGHCLD 231 (30 September 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **LAND DIVISON**

#### **ORIGINATING SUMMON NO 006 OF 2024**

**MUTEZI ALI ::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

## **VERSUS**

**AGANYA JESSICA ::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

### **BEFORE; HON JUSTICE NALUZZE AISHA BATALA**

#### **JUDGEMENT**

### **Introduction;**

- 1. The plaintiff brought this suit by originating summons for determination of the following questions; - i) Whether the plaintiff has a right of way/access road/easement off the public road known as Lasto Lukoma road through the defendant's land to the plaintiff's home and if so, - ii) Whether the plaintiff's right of way/access/easement has been violated by the defendant's actions.

- iii) Whether the plaintiff, his agents, servants or any other interested party have a right at all times to maintain the access road in motor able, good and efficient state of repair - iv) What remedies are available to the parties.

## *Plaintiff's evidence;*

- 2. The summons was supported by an affidavit sworn by the plaintiff which briefly states as follows; - i) That by a sale agreement dated the 22nd April 2005, the plaintiff purchased part of land measuring 39 meters by 22 meters to be surveyed off land comprised in Kyadondo Block 206 Plot 681 at Mpererwe from Aganya Ambrose. - ii) That the defendant who is the widow of the late Aganya Ambrose witnessed the said sales agreement. - iii) That under clause 3(ii) of the said agreement the purchaser was to use the access road off the public road measuring 8 feet wide passing through the vendor's land. - iv) That the plaintiff has always maintained the access road to his home.

v) That before the death of the late the plaintiff used the access road freely and after his death the defendant started limiting the plaintiff from using the said road.

## *Representation;*

3. The plaintiff was represented by Counsel Remmy Buzinwa of M/S Terrain Advocates whereas there was no representation from the defendant despite being served. Only the plaintiff filed his submissions which I have considered in the determination of this matter.

## *Issues for determination;*

*i) Whether the matter is competently before Court? ii) Whether the plaintiff has a right of way/access/easement through the defendant's land? Resolution and determination of the issues;*

- 4. I have read the Originating Summons, the Affidavit in support and the submissions filed by the Plaintiff. - 5. **Order 37 rule 3 of the CPR** provides that: **"A vendor or purchaser of immovable property or their representatives may, at any time or times, take out an originating summons**

**returnable before a Judge sitting in chambers, for determination of any question which may arise in respect of any requisitions or objections, or any claim for compensation; or any other question arising out of or connected with the contract of sale, not being a question affecting the existence or validity of the contract."**

- 6. The decision in the case of **Kalusumbai Vs Abdul Hussein (1975) EA 708,** where it was held that the procedure by Originating summons was intended to enable simple matters to be settled by the Court without the expense of bringing an action in the usual way, not to have court determine matters which involve a serious question. - 7. The facts of this case show that the plaintiff purchased land with an easement as per the sales agreement which easement he used during the lifetime of the vendor. However, upon the death of the vendor the plaintiff was denied access from using the said easement by the defendant who is the widow of the vendor. - 8. I am of the view that this matter dwells on the validity of transactions touching the subject matter and existence of the rights arising from the said transaction.

- 9. The issues raised in the instant case are contentious and not simple as alleged by the plaintiff since it involves determination of rights of the parties. Drawing reference to the decision in **JP Nagemi T/a Nagemi and Co. Advocates vs. Ismail Semakula OS. 8/13** it was held that originating summons should be limited to straight forward matters and that originating summons is not a procedure by which decisions on disputed questions of fact can be obtained and that it is not appropriate where disputes involve considerable amount of evidence. - 10. Further the civil procedure rules under Order 37 intended to solve simple matters which do not require investigations and that should only be used in situations where there are no substantial disputes as to facts but rather on legal consequences of the set of facts. - 11. The content of the affidavit deponed by the plaintiff delves into the details of the transaction between the plaintiff and the late and how the defendant has denied the plaintiff access to the easement. The plaintiff further refers to the content of the sales agreement executed between him and the late and what they agreed upon as the two parties.

- 12. In the decision of **Nakabugo Vs. Serunjogi (1981) HCB 58,** it was held that it is trite law that when disputed facts are complex and involve a considerable amount of oral evidence, an Originating Summons is not the proper procedure to take. - 13. With reference to the pleadings and submissions of the applicant, I am of the view that this matter appears to be a contentious one that requires this court to look into a number of considerable evidence and ascertain the rights of the parties before determining the same. - 14. The proper procedure to have all the issues raised in this matter ought to have been an ordinary suit brought by way of a plaint. - 15. This court is of a finding that the procedure adopted by the plaintiff cannot be sustained to determine the questions raised, therefore the suit is accordingly dismissed with no orders as to costs.

16.

#### **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

## **Ag. JUDGE**

# **30th /09/2024**

# **Delivered on the 30th of September,2024 electronically via**

## **ECCMIS.**