Sennabulya v Kayondo (Civil Appeal 9 of 2023) [2025] UGHC 219 (20 April 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL APPEAL NO. 009 OF 2023**

**(Arising out of Civil Suit No.090 of 2020 of the Chief Magistrates Court of Masaka at Masaka)**

**SSENNABULYA JOSEPH:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS KAYONDO EDWARD:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

# **Before: HON JUSTICE LAWRENCE TWEYANZE**

# **JUDGMENT**

#### **Introduction.**

1. This is an appeal in which the Appellant being dissatisfied with the Judgment and orders of Her Worship Christine Nantege, Sen. Magistrate Grade One at the Chief Magistrates Court of Masaka at Masaka under Civil Suit No.090 of 2020, brought this appeal seeking orders that the appeal be allowed with costs, the Judgment of the lower Court be aside and the costs of the lower Court be granted to the Appellant.

#### **Brief Background to the Appeal.**

- 2. The background as per the lower Court is that the Respondent/Plaintiff instituted Civil Suit No. 090/2020 against the Appellant/Defendant seeking for a declaration that the Defendant's conduct of blocking the access route to the Plaintiff's residence was unlawful, an order demolishing the perimeter wall constructed by the Defendant in the access route to the Plaintiff's residence, a permanent injunction restraining the Defendant, his agents, savants, successors in title from interfering with the access route to the Plaintiff's resident, general damages and costs of the suit. - 3. The Respondent/Plaintiff averred that he is the owner of a Plot of land situate at Kirumba "A", Katwe-Butego having purchased the same in 2003 from Kawuma William. That the Plaintiff developed the Plot with a residential house. That the Plot had a clear access to the road connecting to Masaka-Mbarara High way. That the Defendant purchased the adjoining land in front of the Plaintiff's Plot and left an access route to the Plaintiff's house. That around 2018, the Defendant started threatening to block the access route to the Plaintiff's home alleging it was within his Plot. That during the COVID -19 Lock down, the Defendant blocked the access to the Plaintiff's home by constructing a perimeter wall thereon. - 4. The Appellant/Defendant denied the allegations and averred that on 17/01/2005, he bought the suit land from a one Joshua R Kulubya measuring 73ft by 58ft and an agreement was executed and it was attached and marked A. That upon purchase, the

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Defendant took immediate possession and occupation by constructing a residential house in which he is staying to-date. That during the Lock Down period between the months of March 2020 and April 2020, the Plaintiff entered the Defendant's land and sprayed the compound with pesticide. That instead of instituting criminal proceedings against the Plaintiff, the Defendant opted to fence off his land with a perimeter wall. That there is no access road on his Plot of land as claimed by the Plaintiff. That the Defendant has all the interests in the land he constructed the perimeter wall.

5. The Trial Magistrate found in favour of the Respondent. The Appellant being dissatisfied with the said Judgment filed this Appeal.

# **The Grounds of Appeal.**

- *1. The Learned Trial Magistrate erred in law and fact when she admitted Exhibit PE1 without giving an opportunity to the Appellant/ Defendant or his lawyer to object to it.* - *2. The Learned Trial Magistrate erred in law and fact when she entertained the matter without jurisdiction.* - *3. The Learned Trial Magistrate erred in law and fact when she relied on PE1 which had glaring irregularities thereby reaching a wrong decision.* - *4. The Learned Trial Magistrate erred in law and fact when she awarded general damages of Ushs. 2,000,000/= which was excessive and harsh.*

### **Representation and hearing.**

6. The Appellant was represented by Jojoma Advocates while the Respondent was represented by M/s Mbeeta, Kamya & Co. Advocates. The appeal was heard by way of written submissions and both parties filed written submissions that have been considered.

# **Duty of the first appellate Court.**

- 7. The duty of a first Appellate Court is to scrutinise and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 282 (Revised Edition)*. This position has also been re-stated in a number of decided cases like **J.***F. Zaabwe vs. Orient Bank Ltd CACA No. 4 of 2006*. - 8. In case of conflicting evidence, the appellate Court has to make due allowance for the fact that it has neither seen nor heard the witness, it must weigh the conflicting evidence and draw its own inference and conclusions (*See Lovinsa Nankya vs. Nsibambi (1980) HCB 81).*

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#### **Determination of the Appeal.**

#### **Grounds 1 and 3.**

I will resolve grounds 1 and 3 together since they all relate to PEX1 which is being challenged by the Appellant.

*The Learned Trial Magistrate erred in law and fact when she admitted Exhibit PE1 without giving an opportunity to the Appellant/ Defendant or his lawyer to object to it.*

### *The Learned Trial Magistrate erred in law and fact when she relied on PE1 which had glaring irregularities thereby reaching a wrong decision.*

- 9. Counsel for the Appellant submitted that Article 28(1) of the Constitution of Uganda as amended provides that in determination of any civil rights & obligation or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent & impartial Court or tribunal established by law. That under Article 44(c) of the Constitution of Uganda as amended, the right to a fair hearing is nonderogable. - 10. Counsel submitted that the right to fair hearing entails the examination of the exhibit PE1 which is a fundamental step in a trial because it is through the examination of PE1 that the veracity & credibility of the Respondent was to be tested. That the Appellant or his Advocate was denied the opportunity to examine and to object to it. That the Trial Magistrate denied the Appellant's lawyer to object the exhibit PE1 which denial was in violation of the principle of "audi alteram partm". This is a latin phrase which means "hear the other side" it is the principle of natural justice where every person gets a chance of being heard. That both sides must be heard before passing any order. That denying the opportunity by the Trial Magistrate to object the PE1 of the Respondent occasioned a miscarriage of justice on the Appellant. - 11. SFor the Respondent, Counsel submitted that the Appellant was allowed an opportunity to cross-examine the witness (PW1) who tendered the exhibit PE1 into Court for admission. That even if the Court did not let him oppose its admission, the Appellant could ably question it and impeach the document during crossexamination. That however, the cross examination yielded no such result in that regard. That the Learned Trial Magistrate observed the proceedings and accepted the exhibit PE1 as reliable evidence since the Appellant failed to impeach the same. Counsel cited the case of *Geoffrey Brown vs. Ojijo Pascal Civil Suit No. 228 of 2017, Honourable Justice Musa Sekaana*, that Court observed that the evidence of the Plaintiff remained unchallenged and the attempt to assail the same in cross-examination did not help the defence case since the Plaintiff still remained firm and forthright in his testimony. Counsel for the Respondent submitted that the Learned Trial Magistrate cannot be faulted for the Appellant's failure to impeach an exhibit's legality and significance during a fair Trial in which cross - examination was duly allowed.

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### *Analysis.*

- 12. As rightly submitted by the Counsel for the Appellant, the right to a fair hearing is fundamental under Article 28 of the Constitution. It requires among others to hear both versions of the parties, and it is no doubt that the parties appeared at the lower Court, were represented and were all heard. The major contention by the Appellant is that the Trial Magistrate admitted Exhibit PE1 without giving an opportunity to the Appellant/ Defendant or his lawyer to object to it. - 13. Uganda's judicial system is adversarial in nature which is based on opposing sides acting as adversaries who compete to convince the judicial officer that their version of the facts is the most convincing. Advocates are given free choice in terms of which issues are presented, what evidence to adduce in support of their case and what witnesses to call. The judicial officer presides over the trial and rules on disputed issues of procedure and evidence, asking the witness questions to clarify evidence, and concludes the trial by delivering a decision based on the evidence as presented and the law. It is not open to the judicial officer in an adversarial system to enquire beyond the facts and evidence that are presented by the opposing parties and or their Advocates. The role of a judicial officer in regards choice of evidence to be produced at the trial is largely passive; he or she is an impartial referee who rules on matters of law and evidence. - 14. The respective Advocates for the parties in an adversarial system have the freedom to choose what evidence to present to the Court. The right to a fair trial entails the right to offer the testimony of witnesses, the right to present documents as exhibits in evidence, the right to present each party's version of the facts to the Court so that it may decide where the truth lies and of course the right to cross-examine witnesses. The very integrity of the judicial system and public confidence in the system depends on full disclosure of all the facts, within the framework of the rules of evidence. - 15. The principle that undergirds the parties' right to present and object to evidence is thus essential. The trial process would be in shambles if either party had an absolute right to control what kind of exhibits should be admitted and that which should not. Under the rules of evidence, the adversarial system cannot function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent's case. To challenge any evidence, the opposing party has a right to cross-examine the other or one who tenders in documents/exhibits to challenge its admissibility. Cross-examination, minimizes the risk that a judgment will be predicated on incomplete, misleading, or even deliberately fabricated testimony.

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16. In this case, the record of proceedings of the lower Court at page 4 indicates that the Plaintiff's sale agreement was tendered in Court by PW1 and was admitted as PEX1. Counsel Andrew Tusingwire indeed cross-examined PW1, but he did not challenge the said PEX1 by cross-examination. Also, if the Appellant wanted to, he would have prayed to Court to challenge the said PEX1, but this was not done. I do not find any reason to fault the Trial Magistrate for admitting exhibit PEX1. The Appellant was given an opportunity to object to it but he did not do so at cross-examination. The argument by the Appellant that the Trial Magistrate admitted exhibit PEX1 without giving an opportunity to the Appellant/ Defendant or his lawyer to object to it is void of merit. The Appellant did not challenge the said PEX1 by cross-examination and neither did he point to any irregularities in PEX1 at trial. The Trial Magistrate reached the right conclusion in regards PEX1 based on the evidence on record. On record still, I do not see where Counsel or his client the Appellant indicating their displeasure and them being overruled by the Trial Magistrate – short of this one cannot turn around and claim that the exhibit was wrongfully admitted. Grounds 1 and 3 fail.

### *Ground 2: The Learned Trial Magistrate erred in law and fact when she entertained the matter without jurisdiction.*

- 17. Counsel for the Appellant submitted that basing on the provision of Section 60 of the Roads Act which provides that, where the owner of any land is unable, through negotiations to obtain leave from adjoining land owners to construct an access road to a public road, he/she may apply to the Minister for leave to construct an access road over any land lying between his/her land & the public road. That the Minister may, in consultation with the relevant Road Authority, grant leave to construct an access road. That the Minister shall, before granting leave to construct an access road under subsection (2), ensure that an Applicants compensates the adjoining land owner. - 18. Counsel submitted that before the coming into force of the Roads Act, the Courts of Judicature had jurisdiction to entertain Applications for leave to construct access roads over adjoining lands between an Applicants 's land and a public high way/ road, that jurisdiction was however ousted by and upon the commencement of the Roads Act. That the Trial Court/ Magistrate ceased to have jurisdiction in the matter by virtue of and pursuant to Section 60 of the Roads Act. That Section 60 of the Roads Act confers jurisdiction on the Minister responsible for roads to hear and determine Applications for leave to construct an access road through private adjoining property but not the Learned Trial Magistrate. - 19. Counsel for the Respondent submitted that Section 60 of the Roads Act essentially stipulates that a land owner who needs to construct an access road, through an adjoining land owner's land, to a public road may apply to the line Minister for leave. That in accordance with subsection (2) thereof, the Minister shall before granting the

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above mentioned leave to construct an access road, ensure that the Applicants compensates the adjoining land owner.

- 20. That the above position regards instances where the Applicants seeks the Minister's leave to construct a fresh access road that has never existed before through the subject land. That in the instant case, an access road once existed through the subject land to the Plaintiff/Respondent's land, until the Appellant constructed a perimeter wall blocking the said access road during the COVID -19 Lockdown period. That in the case of *Mugisha Steven vs. Karugaba Yostasi CS No. 50 of 2013***,** Court *intimated that in instances where an access path once existed but was then blocked, then such a matter does not require the procedure given by the then Access to Roads Act (Roads Act now).* - 21. That the Respondent (Plaintiff at Trial) testified that he bought his land in 2003 and his land sale Agreement admitted as PE1 confirmed that fact. That an access road from his land to the Masaka-Mbarara Highway, which was also provided for in his sale Agreement, existed at the time he purchased his land until the Appellant eventually blocked it during COVID -19 Lockdown. That PW2 (Sserwanga Abdul) further testified that he would drive through the already existing access route from the Masaka-Mbarara Highway to the Respondent's home whenever he visited the Respondent till he was informed about its blockage. That this shows that the Respondent took and enjoyed possession of his land with the access road in existence for a significant period of time before it was blocked by the Appellant. Counsel submitted that the Appellant had exceeded the measurements of his Plot when he constructed the perimeter wall, and this was clearly a land dispute which required the participation of a Court of law and not the Minister. Counsel submitted that the Learned Trial Magistrate was rightly constituted with jurisdiction to entertain and dispose off the matter.

# *Analysis.*

- *22.* The general position is that issues of jurisdiction are substantive and go to the core of a case. If a Court lacks jurisdiction, its judgment and orders, however precisely certain and technically correct, are mere nullities and not simply voidable. Such judgment and orders are of no legal consequence and may not only be set aside any time by the Court in which they were rendered but may be declared void in every Court in which they are presented. (*See: Gabula vs. Wakidaka, HCCA No. 29 of 2006 and Assanand & Sons (U) Ltd vs. East African Records Ltd (1959) E. A 360.)* - 23. The major contention of the Appellant is that Section 60 of the Roads Act confers jurisdiction on the Minister responsible for roads to hear and determine Applications for leave to construct an access road through private adjoining property but not the Learned Trial Magistrate.

24. Counsel for the Appellant cites Section 60 of the Road Acts, but does not state which exact Act and chapter he refers to. Nonetheless, for purposes of this ground, the Access to Roads Act Cap 350 and the Roads Act Cap 358 were repealed by the Roads Act, 2019 Act No. 16 of 2019 which now Cap . I am constrained to quote the Sections of the applicable law as of now which is the *Roads Act, 2019 Act No. 16 of 2019.* In my view, the relevant Sections on this ground of appeal are Section 60, 61, and 62 of Roads Act, 2019 Act No. 16 of 2019 which provides;

#### *"Part VII – Access to roads*

#### *60. Control of points of access to public roads*

*(1)The Minister may, in consultation with the relevant road authority, make regulations for the control of the number, location and design of points of access to public roads.*

*(2)A road authority may construct service roads for purposes of limiting the number of access roads joining public roads.*

#### *61. Requirements and specification of access roads*

*(1)The Minister shall, by regulations, specify the requirements and specifications of access roads.*

*(2)Where a road or portion of a road or any land has been designated and acquired as an access road, a person shall not, without written approval from a road authority, construct, use, or allow the use of an entrance-way or gate which or part of which is connected with or open upon the access road.*

*(3)A person who contravenes this section commits an offence and is liable, on conviction, to a fine not exceeding one hundred twenty currency points or imprisonment not exceeding five years, or both.*

#### *62. Application for leave to construct access road through private property*

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

*(2)The Minister may, in consultation with the relevant road authority, grant leave to construct an access road.*

*(3) The Minister shall, before granting leave to construct an access road under subsection (2), ensure that an Applicants compensates the adjoining landowner.*

*(4)An application under subsection (1) shall be in a manner prescribed by regulations."*

25. Though Counsel for the Appellant relies on section 60 above, his arguments are in line with Section 62 but not Section 60. I will therefore resolve this ground under Section 62 of the Roads Act, 2019 Act No. 16 of 2019. From the pleadings in the lower Court, the Plaintiff under paragraph 3 instituted the suit seeking for a declaration that the Defendant's conduct of blocking the access route to the Plaintiff's residence was unlawful, an order demolishing the perimeter wall constructed by the Defendant in

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the access route to the Plaintiff's residence, a permanent injunction restraining the Defendant, his agents, servants, successors in title from interfering with the access route to the Plaintiff's residence, general damages and costs of the suit. Under paragraph 6 of the Written Statement of Defence, the Appellant/Defendant submitted to the jurisdiction of the Court. He cannot now turn around and seek to the challenge the territorial jurisdiction of Court which he did not challenge at Trial. Moreover, *Section 216 of the Magistrate Court Act***,** provides that **"***No objection as to place of suing shall be allowed on appeal unless the objection was taken in the Court of first instance and unless there has been a consequent failure of justice." (Underlined emphasis mine).*

- 26. But be that as it may, the Plaintiff's facts of this case are distinguishable from Section 62 of the Roads Act, 2019 Act No. 16 of 2019. As properly submitted by Counsel for the Respondent, Section 62 regards instances where the Applicant seeks the Minister's leave to construct a fresh access road that has never existed before through the subject land. In the instant case, the Respondent's averments were that an access road once existed through the subject land to the Plaintiff/Respondent's land, until the Appellant constructed a perimeter wall blocking the said access road during the COVID -19 Lockdown period. Also, among the Respondent's prayers, the Respondent sought for declaratory orders, and other orders like general damages and costs of the suit. In my view, these prayers would only be determined by Court not the Minister, and it would not have been the intention of the legislature to limit or oust the jurisdiction of Court in handling disputes like one before the Trial Court. - 27. In my view, Section 62 of the Roads Act, 2019 Act No. 16 of 2019 as it is, does not oust the jurisdiction of Court to determine disputes like the one before the Trial Court, and one in this Appeal where the access to road already existed. In the circumstances, I find that the Learned Trial Magistrate had jurisdiction to entertain and dispose off the matter between parties. Ground 2 of Appeal lacks merit and it fails.

### *Ground 4: The Learned Trial Magistrate erred in law and fact when she awarded general damages of Ushs. 2,000,000/= which was excessive and harsh.*

- 28. Counsel for the Appellant submitted that the most important rule regarding the award of general damages is that, the Court must in all cases award damages with the object of compensating the Plaintiff for his/her loss. - 29. For the Respondent, it was submitted that the Appellant since 2017 constructed a perimeter wall blocking the Respondent from accessing his home without leaving him any other alternative access route to his residence as it was noticed at locus visit which inconvenienced the Respondent. That since it is upon the Courts discretion to award general damages, that the Learned Trial Magistrate evaluated the evidence presented in Court and that at locus visit and the inconveniences suffered by the Respondent since the Appellant constructed a perimeter wall thus exercising her discretion judiciously by awarding general damages of 2,000,000/= to the Respondent.

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# *Analysis.*

- 30. General damages are the direct natural or probable consequence of the wrongful act complained of and include damages for pain, suffering, inconvenience and anticipated future loss. (see *Kiwanuka Godfrey T/a Tosumi Auto Spares and GlassMart vs. Arua District Local Government H. C. Civil Suit No. 186 of 2006*). The award of general damages is at the discretion of Court in respect of what the law presumes to be the natural and probable consequence of the Defendant's act or omission (*see Erukana Kuwe vs. Isaac Patrick Matovu and another, H. C. Civil Suit No. 177 of 2003*). - 31. It is now trite law that, an appellate Court cannot interfere with the exercise of discretion of the Trial Court in assessment and award of general damages unless he or she acted on a wrong principle or where the award is manifestly low or high as to occasion a miscarriage of justice*.* See the Court of Appeal in *Kabandize vs. Kampala Capital City Authority (Civil Appeal No 36 of 2016) 2019 UGCA 2084 (16 April 2019).* - 32. At the Trial Court, on page 5 of the Judgment, the Trial Magistrate stated that having found that the Plaintiff has an access route from the Masaka-Mbarara High way to his land and that the Defendant blocked the access route by constructing a perimeter wall, the Plaintiff is entitled to general damages of 2,000,000/=. I have not found any basis to interfere with the general damages awarded by the Learned Trial Magistrate. This ground of appeal too fails. - 33. In all, this appeal fails and is hereby dismissed with costs awarded to the Respondent in this Court and the lower Court. Therefore, the Judgment and orders of the Trial Magistrate are upheld. I make the following orders: - i. This Appeal lacks merits and is hereby dismissed. - ii. Costs of this Appeal and the lower Court are awarded to the Respondent - iii. All orders of the Trial Court are upheld.

It is so ordered.

Judgment signed and delivered electronically at Masaka this 20th day of April, 2025

…………………………………… **LAWRENCE TWEYANZE JUDGE. 20th April, 2025.**