[2023] UGSC 31

## 10 I. STEVEN KAI. ANZI KATABAZ 2. HENRYSENoGA) t) 3. rsAAC MAToVU) APPELI. ANTS VERSUS tGANT|TUS KADoMA) 1. THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM:0W|NY- D0LL0, CJ, MWONDHA, TIBATEMWA - EKIRIKUBINZA, CHIBITA & MADRAMA, JJSC) CIVIL APPEAL NO 23 OF 2O2O

. HATTKoBUSTNGYE) RESPONDENTS 2

(Appeal from the Judgment of the Court of Appeal at Kampala before Hon Lady Justice Elizabeth Musoke, Hon. Mr. Justice Stephen Musota and Hon. Justice Mr. Remmy Kasule dated 24h July, 2020 in Court of Appeal Civil Appeal No. 003 of 2018 also arising from the Judgment of the High Court of Uganda (Land Division) per Basharya, J in Civil Suit No. 524 of 2014)

## JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC

This is a second appeal. from the judgment of the Court of Appeal. upon determination of an appeal. from the decision of the High Court in the exercise of its originat jurisdiction. The respondents sued the appettant for trespass on 0.18 acres in their property comprised in Kyadondo Btock 269 Ptot 25, land at Lubowa, whereupon the appel. Lants counterctaimed against the respondent for a dectaration that they had a right of use of the 0.18 acres as an access road to their Ptot and that the respondent was guitty of ^a private nuisance against the appel.tants for erecting a wat[ on the access road.

The High Court atlowed the suit of the respondents, dismissed the counterctaim of the appettants and issued the fotlowing orders:

- ⁵ 1. The defendants (the current appettants) are trespassers on 0.18 acres of the suit [and. - 2. The defendants ordered to give complete and futt vacant possession to the ptaintiffs by vacating of the suit [and. - 3. A permanent injunction to issue against the defendants or anyone deriving authority from them from continuing to trespass on the suit [and. - 4. The pLaintiffs are awarded att the special damages as pteaded in the ptaint. - 5. The ptaintiffs are awarded generaI damages of shil.tings 50,000,000/= - 6. amount in (4) and (5) above shatl attract interest at 8% per annum from the date of this judgment untiI payment in futt. - 7. The pLaintiffs are awarded costs of the suit.

The appetlants were aggrieved and appeated to the Court of Appeat and the appeal was dismissed save that the Court of Appeat reduced the award of Uganda shil.tings 50,000,000/= to 20,000,000/=.

The appettants were stitl. aggrieved and todged a second appeal. in this court on two grounds of appeat namety:

- 1. That the learned Justices of AppeaL erred when they fail.ed to property evatuate the law on easements and came to a wrong conctusion that the existence of a footpath on the suit land was not a form of easement on the suit property. - 2. That the learned Justices of Appeat erred when they faited to properly evatuate the law and came to a wrong conctusion that the respondent's act did not amount to a private nuisance. - When the appeal came for hearing, the appetlant was represented by learned counsel Esau lsingoma and the respondent was represented by learned counsel Amos Busheja. The court was addressed by way of written submissions f ited on the court record which both counsel adopted as their address to this court whereupon Judgment was reserved on notice. 30

## s Ground 1.

The appel.tant's counsel addressed the court on the evidence that shows that there was a footpath which had been in continuous use on the suit [and. Secondty, the appettant's counseI submitted that the learned Justices of the Court of Appeal. erred in taw in hotding that the footpath recognised by the respondent and the triaL judge was not an easement. That their Lordships further erred when they confirmed the triat judge's assertion that the creation of atl easements must foltow the right procedure set out in the Access to Roads Act cap 350. He submitted that an easement is a right of use of someone's land for a specific purpose and attows another to use and to enter upon property of another without possessing it. Counsel further

addressed the court on the law on easements.

With regard to ground 2, the appettant's counsel submitted that the hol.ding on the first ground was erroneous and therefore if the court found that there was an easement, then the btocking of the access route by creating a wa[[ fence was a private nuisance against them.

ln repty to ground I of the appeat, the respondent's counseI submitted that issues were framed and agreed upon by the parties for the court's determination and upon which the decision of the triat court issued on the question of whether there was an access road on the [and comprised in

- 25 Kyadondo Btock 269 Ptot 25 land at Lubowa which serviced Ptots 26, 50, 53, 54 and 55. The second issue in the trial court was whether the defendants created the access road. ln the premises, it was misteading to divert the court to consider a footpath since the court deatt with the issue of whether there was an access road. Counsel contended that if the appettant wanted - 30 the Justices of the Court of Appeai to fautt the trial judge and make a f inding that the existence of a footpath on the suit property amounted to an easement, they ought to have pLeaded the same and atso adduced evidence in support thereof at the tria[.

35 The submrssions of the respondent on ground 1 atso shaped the submissions on ground 2 based on the outcome of ground 1. Ground l of the

appeat, therefore, has to be determined as its outcome determines the outcome of ground 2. lf ground I of the appeat faiLs, then there woutd be no need to consider ground 2 of the appeal because its outcome leads to the determination of Ground 2 of the appeal one way or the other. 5

ln rejoinder, the appeLl.ant's counseI reiterated submissions that the triat Justices of Appeal. erred in law and faited to evatuate the evidence on record on the question of the footpath as an easement. He contended that it was erroneous and a misdirection of the respondents' counsel to assert that the matter was never in the pteadings of the tria[ court yet it was argued by both parties in the triaI court and in the Court of Appeat. 10

## ¹⁵ Consideration of the appea[.

I have carefutty considered the grounds of appeat, the submissions of counsel and the [aw. A second appeal ought to be considered on point of law especialty where there are concurrent findings of fact of the first appettate court and the tria[ court on the issue.

- ²⁰ The facts on which the appeal is based are not in dispute. The respondent raised a point of law that the issue of a footpath as contra distinguished from an access road was not p[eaded and cannot be considered in a second appeat. The two grounds of appeal in this court are that: - 1. That the learned Justices of AppeaL erred when they faited to property evatuate the law on easements and came to a wrong conctusion that the existence of a footpath on the suit land was not a form of easement on the suit property. - 30

2. That the [earned Justices of Appeat erred when they faited to property evatuate the law and came to a wrong conctusion that the respondent's act did not amount to a private nuisance.

lf this court disatlows the first ground and affirms the concurrent findings of fact and Law of the triaI court and the first appeLl.ant court, the resotution of ground 1 woutd resolve the second ground of appeat. Secondty the

⁵ respondent raised a point of law that the appettant cannot raise the issue of a footpath and easements in a second appeal because this was not pteaded.

I have carefulty considered the matters considered by the triat court and the first appe[tate court to determine whether ground 1 can be tawfutl.y argued in a second appeat and it is necessary to give a brief background to the ground before resotving the point of [aw. 10

Proceedings commenced in the High Court when the respondents to this appeat sued the appettants to this appeal for dectaration that the defendants who are now the appettants in this court are trespassers on 0.18 acres of land comprised rn FRV 365 fotio 10 Ptot 25 Lubowa Estate, and for vacant possession, a permanent injunctron restraining the appeltants or their agents from continuing to trespass on the suit property, generaI damages, interest and costs.

20 25 The ptaintiffs are registered proprietors of 1.021 acres which they purchased from the former proprietor Mr Yusuf Kagumire. They purchased the property upon conducting a search which showed that there was no access road as al.teged by the appettants but upon surveying the property after purchasing it, they estabtished that 0.18 acres had been aIienated leaving them with onty 0.841 acres out of the 1.023 acres they purchased. The 0.18 acres remaining was created and atienated to make an access road to adjourning neighbouring ptots which inctuded that of the appel.l.ants and the adjourning Pl.ots aLLegedly servrced by the created access roads are Ptots 26, 50, 53, 54, and 55.

The respondents fenced off the entire 1.021 acres thereby fencing within their Ptot, the contested 0.84 acres ctaimed by the appel.tants as an access road. The 0.84 acres was assessed by a vatuation surveyor who va[ued it at a sum of Uganda shil.tings 125,000,000/= The appettants destroyed the perimeter wat[ the respondent had erected to fence off their'1.021 acres of Land. ln their defence to the suit of the respondents, the appettants denied being trespassers and ctaimed to be users of the access road which leads 30 35

- ⁵ to the named adjourning ptots. They ctaimed that the access road had been in existence for a [ong time. The appetlants counterctaimed against the respondent atteging private nuisance for interference with their quiet enjoyment of the access road. They sought a dectaration that they were entitted to the use of the access road comprising of the 0.84 acres carved - out of the respondent's Ptot No. 25. 10

The triat court set out four issues for determination of the suit namety:

- l. Whether there was an access road on the tand comprised in Kyadondo Btock 269 PLot 25 land at Lubowa that services Pl.ot 26, 50, 53, 54 and 55? - 2. Whether the defendants created the access road? 15 - 3. Whether the ptaintiffs are liabte to the defendants for private nuisance? - 4. Remedies for the parties.

0n the first issue the trial court considered the fact that there was no access road as shown in the titte and cadastraI map for the suit property (Ptot No. 25) produced by the respondent which was for the entire 1.021 acres. The court found as a later creation, the cadastral map produced by the appetl.ants which has provision for an access road between Pl.ots 24 and 26 and which reduced Pl.ot 25 by 0.18 acres. Further the trial judge found that the stance of the appettants in the suit was untenable as there was no evidence of a tawfutty created access road that reduced the respondent's 20 25

Ptot by 0.18 acres.

The triat judge hetd that such a reduction required prior adequate and fair compensation to the registered owners of the PLot 25. He also hetd that the instrument numbers of the titte of the respondent which had no access road disclosed in its cadastral map proved that it was registered much eartier in 1968 than that of the appel.l.ants whose instrument and cadastrat map had provision for an access road. This Later instrument was registered in 1994 and therefore the eartier instrument of the respondents' registration took 30

precedence over the later instrument. The triat judge atso hetd that his 35

⁵ findings meant that no access road ever existed which serviced adjourning Ptots 26,50, 53, 54 and 55. Further, if there was an access road as refLected in the appettant's cadastral map, it was created without consent of the respondent.

0n the second issue of who created the access road, the trial court found that it was created by the defendants who are now the appettants in this court. 10

0n the third issue on whether the respondents are tiabte in the tort of private nuisance against the appettants, the triat Judge answered the question in the negative. The triat Judge found that the appetLants were

15 trespassers on the 0.,l8 acres of the suit property and made an order for vacant possession and other consequential orders inclusive of speciat damages and general damages as wet[ as issued an rnjunction restraining the appel.tants from trespassing on the suit property.

20 The appeLtants being aggrieved by the decision of the trial court appeated to the Court of Appeal. on three grounds of appeaL namety:

- 1. The learned triat judge erred in law and fact when he acknowtedged that there was a footpath on Ptot 25 but hetd that there was no easement. - 2. The learned triaL judge erred in [aw and fact when he hetd that the ptaintiffs did not commit any act of private nuisance. - 3. The triat judge erred in law and fact when he awarded special and general damages as prayed by the ptaintiffs without regard to the law in respect of damages.

30 0n the first ground, the court found that the existence of a footpath was not a form of easement on the suit property. That the creation of an access road on Ptot 25 without consent of the respondents was untawfu[. As a question of fact, the Court of Appeal. found that there was no access road servicing Pl.ot 26, 50, - 55 and the creation of one, without foltowing the procedure [aid down under the Access to Roads Act, amounted to trespass.

⁵ The above hotding a[so resolves ground 2 of the appeaI and the Court of Appeat reached the conctusion that the construction of the wal.l. by the respondents drd not constitute a private nursance against the appettants.

0n the third ground of whether the damages awarded were excessive, the Court of Appeal. reduced the award of Uganda shittings 50,000,000/= generaI

damages for being excessive to Uganda shittings 20,000,000/= ln the premises, the appeaL substantiatty faiLed and was dismissed with costs. 10

ln this court ground 1 of the appeal reopens issue 1 in the triat court and ground 1 of the appeal in the first appettate court where the two courts have arrived at concurrent f indings of fact and [aw.

The respondents' objection to ground I of the appeal is that the issue of ^a footpath was not pteaded and is a new matter which cannot be raised in a second appeat. 15

I have perused the pteadings of the parties in the triaI court. The question of the access road arose in the pLeadings of the parties and particul.arLy in the counterctaim of the appetlants in the triaI court. The counterctaim is contained in paragraph B of the written statement of defence of the appettants and their counterctaim which is hereby reproduced for ease of reference: 20

L The defendants repeat the contents of paragraph 1 to 7 of the Written Statement of Defence and Counter - Ctaim against the Ptaintiff as follows;

a) That the first, second, third, fourth, fifth, sixth and seventh Defendants the registered proprietors of the Land comprised bordering the suit access road and therefore members of the user community to the excIusion of [and. The defendant's certificate of titLe shaLt be produced and relied on at the trial.

b) That the defendants were issued with copies of the mapping plan of the area before buying their respective Plots from MitcheU. courts who originaLty owned the entire piece of [and and were also responsible for creating the various access routes to the various Plots which inctuded the suit access road. A Photostat copy of the cadastral map of the area is hereto marked and attached as annexure "8". 30 35

⁵ c) That the pl.aintiff's maticious acts of attempting to block the access road by buitding a perimeter waL[ over it interfered with the defendant's right to quiet enjoyment of their land which caused him to suffer great discomfort and inconvenience.

PARTICULARS OF PRIVATE NUISANCE

- 10 i) The first, second, third, fourth, fifth, sixth and Seventh defendants are the registered proprietors of the Land comprised bordering the suit access road and therefore members of the user community to the exclusion of none. The defendants'certificate of titte shatl be produced and relied on at the tria[. - ii) That the suit access road was created by MitcheLt courts who owned the entire piece of land which they later subdivided up into various Plots and sotd off to the defendants and the pLaintiffs. - That the pLaintiffs have on several previous occasions attempted to block the access road by buitding a wa[[ fence over it which caused the defendants to suffer great discomfort and inconvenience. iii) - That the ptaintiffs knew about the existence of the said access route and acted maliciousty in an attempt to block of the said access road thus amounting to unreasonable interference with the defendant's right to the quiet enjoyment of their Land. iv)

ln their defence to the counterctaim, the respondents generatty denied the averments in the counterctaim with regard to the private nuisance and specif icatl.y pteaded that the ptaintiff shatt be put to strict proof thereof. ln paragraph 10 they averred as fotlows; ?q

> Paragraph B (b) is denied in total and the counter ptaintiffs shatl be put to strict proof thereof and the atteged access if created was done so ittegatty, and without notice and consent of the registered proprietors of PLot 25 which is a freehotd interest.

The appettants in their written statement of defence to the respondents' ptaint atso have the same averments about the existence of an access road which was reftected in a cadastraI map. SurprisingLy, the words "foot path"

and easement" were not used even once in the written statement of defence and counterctaim and the basis of the defence was that this access road was even indicated in the cadastral print from the Maito Btock of the land 35

⁵ office of Kyadondo Btock 269 and detaits by way of photocopies attached to the written statement of defence. were

The issues framed by the partres through their lawyers arose from the pteadings and were reproduced by the learned triat judge as questions for triat. Generatty, the procedural law is that issues arise from pteadings according to Order 15 rute 1 of the Civit Procedure Rutes which provides that:

1. Framing of issues

(l) lssues arise when a materiaL proposition of law or fact is affirmed by the one party and denied by the other.

15 (2) Materiat propositions are those propositions of Law or fact which a ptaintiff must attege in order to show a right to sue or a defendant must allege in order to const itute a defence.

> (3) Each material proposition affirmed by one party and denied by the other shal'[ form the subject of a distinct issue.

20 (4) lssues are of two kinds: issues of law and issues of fact.

> (5) At the hearing of the suit the court sha[t, after reading the pLeadings, if any, and after such examanation of the parties or their advocates as may appear necessary, ascertain upon what materia[ propositions of law or fact the parties are at variance, and sha[[ thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

> (6) Nothing in this rule requires the court to frame and record issues where the defendant at the hearing of the suit makes no defence, or where issue has been joined upon the pleadings.

30 The issue of a foot path as an easement was not pteaded and coutd not be a matter in controversy for resotution by the High Court or the Court of Appeat.

Further 0rder 2l rutes 4 and 5 of the Civit Procedure Rutes deats with what the contents of a Judgment shoutd be, provides that:

4. Contents of judgment

⁵ Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision on the case and the reasons for the decrsion.

5. Court to state its decision on each issue

ln suits in which issues have been framed, the court shatl state its finding or decision, with the reasons for the finding or decision, upon each separate issue, unless the f inding upon any one or more of the issues is suff icient for the decision of the suit.

The question of whether the appettants were entitled to an easement whrch was embodied in a foot path which had been in use for a long time was not

an issue for triat. lt is ctear that the matter before the triaI court and the first appel,l.ate court concerned an access road. An access road is governed by the Access to Roads Act whose provisions override common Law. The court hetd that if there was an access road, the procedure for creating one was not foltowed. The concurrent finding of the court was that procedure 15

- under the Access to Roads Act Cap 350 was not foltowed and any access road ctaimed by the appettants was ittegat. This was where the controversy revotved. The issue of the footpath as an easement was not considered. ^I further note that it did not arise from the pteadings and is a new point that does not fat[ under the Access to Roads Act. 20 - 25 Under the Access to Roads Act, an access road can be created upon application for leave to construct a road in terms of section 2 of the Act. Secondty, the apptication sha[[ be served on the owner of land who is affected by the proposed access road in terms of section 3. Thirdl.y, there has to be a hearing of the affected parties by the Land Tribunat. Moreover, - 30 section 7 provides for registration by the Registrar of Tittes of the order creating the access road. The order sha[[ be endorsed on the certificate of titte affected with a sketch map showing the course and ptan of the proposed access road. Last but not least section10 of the Access to Roads Act provides for a right of appeal within 30 days of the order of the Land TribunaL to the Hrgh Court against the order and the decision of the High - 35 Court shat[ be finat.

- ⁵ The fact that a later cadastraI map registered in 1994 reftected the existence of an access road woutd have been a valid registration but for the hotding of the [earned triat Judge and the Court of Appeat that the procedure under the Access to Roads Act was not fottowed and the access road was unLawf utly created. The appettants did not pursue thrs hotding on appeaI and - chose to change and base their defence, to the issue, on the existence of a footpath as an easement to which they were entitLed to use. The matter of untawfutness of the access road was finatty determined by the two lower courts and was not further appeated to this court. lt therefore rested. 10 - ln terms of the footpath as an easement, to argue a matter that is not pteaded on the basis of the testimony of some witnesses is not tenabte. The real question in controversy is whether it can be determined by this court as a new matter not arising from pteadings. ln A[wi Abdutrehman Saggaf v Abed Ati Atgeredi n9611 1 EA767 the Court of Appeal. of East Africa sitting at Dar-Es-Sataam considered the rarsrng of new points on appeaL for the first time based on evidence and not pl.eadings and hetd that: 15 20

The circumstances in which a point of law which has not been argued in the court below may be taken on appeaI were considered by the Privy CounciL in Perkowski v. City of Wetlington Corporation (2), []9581 3 Att E. R. 368. This was an appea[ from a decision of the Court of Appeat of New Zealand. The facts of the case are not material, but the appeltant there sought to base her case both before the Court of AppeaL of New Zeatand and before the Privy CounciL on a submission which had not been made at the tria[. The Court of Appeat of New Zealand decided that, the point not having been taken at the triat, it cou[d not be taken on appea[. Their tordships of the Privy CounciI said (at p. 373 of the report):

"ln Connecticut Fire lnsurance Co. v. Kavanagh, [1892] A. C.473, Lord Watson, in detivering the judgment of their Lordships' Board, after referring to the raising of points of law in an appetlate court on facts admitted and proved beyond controversy said (ibid., at p. 480): 30

'But their lordships have no hesrtation in hotding that the course ought not, in any case, to be foLtowed. untess the court is satisfied that the evrdence upon which they are asked to decide estabtashed beyond doubt that the facts, if futty investigated, wou[d have supported the new ptea.' 35

- ⁵ I agree that any new point of law raised for the first time on appea[ shoutd be based on facts not in controversy and evidence that is not chaLl.enged. Where the matter is contested, it cannot form the basis for a new point of law raised on appeal. - Simitar to the matter before this court, the question of the pteadings not having an averment of the cause of action sought to be argued in the final court of appeat was atso considered by the East African Court of Appeat in Atwi Abdutrehman Saggaf v Abed Ati Al.geredi (supra) where the Court cited with approvat the dictum of Lord Normand in Esso Petroleum Co. Ltd. v. Southport Corporation (3), [1956] A. C. 218 at p. 238 on the purpose of pteading to found a cause of action. I have found it instructive to quote the futt text of the Judgment of Lord Normand on the issue in Esso Petroteum Co. Ltd Vs Southport Corporation [19561 A. C. 218 at pages 238 - 239 which judgment is persuasive and appticabte to the facts before this court. After setting out what the pteadings in the ptaint disclosed, Lord Normand said: 10 15

These were the allegations which the respondents set out to prove. There was no notice in the pl.eadings of any other cause of action, such as that the appe[ants negtigentLy sent the vessel to sea in an unseaworthy condition.

The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disctosed by them. In fact, the evidence in the case was concerned onty with the negtigence atleged. The result was that the master of the vessel was acquitted by Devlin J. of the negligence atteged, and the [ogical consequence was that the owners were also acquitted by him.

The majority of the Court of Appeat, however, held that the onus lay on the owners to show that the accident which caused the damage was inevitabte, and to do this it woutd have been necessary to show that no reasonabLe care which they might have taken wou[d have avoided the damage. As the appeltants had made no attempt to lead evidence to discharge this onus. the majority of the Court of Appeat found them liabte in damages.

I do not wish to specutate on what might have been a[[eged, nor on what evidence might have been adduced by either side on other allegations, nor on how the onus might have shifted in consequence of other aLtegations and evidence. Confining 35

⁵ myself to the actual altegations of negligence and to the evidence in the case, ^I find the conclusion inevitabte that, since the master has been acquitted of the faults atleged against him, the owners must atso be acquitted. I wish to associate myself with the observations of my noble and learned friend, Lord Radcliffe, on the vaLue of the pLeadings. To condemn a party on a ground of which no fair notice has been given may be as great a denia[ of justice as to condemn him on a ground on which his evidence has been improperly excluded. 10

I wou[d atlow the appeat.

Simil.ar to the matter before this court, the pl.eadings do not support a cause of action of the footpath issue rarsed in evidence being an easement givtng the appel.l.ants a right of access. The appel.tant's suit was founded on ^a cause of action under the Access to Roads Act and they shoul.d not be attowed to depart from their pteadings without amendment to set out a new basis for the new cause of action on a second appeal.. To do so woutd be to deprive the respondent of an opportunity to raise a defence not under the Access to Roads Act but under the heading of easement whether under the 15 20

common law or the Registratron of TitLes Act violating the right of hearing. The right to a fair hearing can be violated by faiture to give notice of the cause of action and therefore the opposite party need not prepare or adduce evidence in defence The opportunity of the partres to address the lowers court on this new cause of action and deat with the evidence passed at the stage of the trial. court and the matter rested. lt ought not in the circumstances, be raised in a second appeat. 25

ln lnterfreight Forwarders (U) Ltd v East African Devetopment Bank (Civil. Appeat No.33 ot1992) (UGSC), the situation is succinctty captured by Oder,

JSC when he stated that: 30

> The system of pteading is necessary in litigation. lt operates to define and detiver it with ctarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court wi[L be caL[ed upon to adjudicate between them. lt thus serves the doubte purpose of informing each party what is the case of the opposite party which wiLt govern the intertocutory proceedings before the triaI and which the court wit[ have to determine at the triat.... Thus, issues are formed on the case of the parties

⁵ so disctosed in the p[eadings and evidence is directed at the triaI to the proof of the case so set and covered by the issues framed therein. A party is expected and is bound to prove the case as alleged by him and as covered in the issues framed. He wi[[ not be aLtowed to succeed on the case not aLteged by him and be aLtowed at the trial to change his case or set up a case inconsistent with what he alLeged in his pLeadings except by way of amendment of the pleadings.

ln the premises, the appettants did not pl.ead the issue of the footpath giving a right of easement and the case was founded on another statute, the Access to Roads Act. Evidence was adduced by way of cadastral maps for and against the existence and tegatity of an access road under the Access to Roads Act. The appeal woutd fait on this point and accordingty ground 2 whose determination depends on the outcome of ground 'l of the appeat cannot succeed. I woul.d find that the appeal. has no merit and I woutd make an order dismissing the appeat with costs to the respondents.

Dated at Kampal.a the \2.triSy of s€h\$ ²⁰²³ 20 I

Christopher Madrama lzama

Justice of the Supreme Court

### THE REPUBUC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: OWINY-DOLLO Cl: MWONDHA, TIBATEMWA-EKIRIKUBINZA, CHIBITA AND MADRAMA JJSC

# CTVIL APPEAL NO. 23 OF 2022


(Arising from the Court of Appeal No. 003 of 2018 Judgment at Kampala, before Musoke, Musota, JJ and Kasule AS. lla dated 24'n luly, 2020)

# JUDGMENT OF OWINY - DOLLO; CJ

I have had the benefit of reading the judgment of my learned brother Madrama, JSC; in draft. I agree with his findings; and the conclusion that this appeal be dismissed.

Since Mwondha, Tibatemwa-Ekirikubinza and Chibita; JJSC also agree, orders are hereby issued in the terms proposed by Madrama JSC in his judgment.

Dated, and signed at Kampala this t15ay of 1.. ......,o=

Alfonse C. Owiny - Dollo Chief Justice

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Owiny-Dollo, CJ, Mwondha, Tibalemwa-Ekirikubinzu, Chibita, Madrama JJ. SC

## CIVIL APPEAL NO. 23 OF 2O2O

| Steven Kalanzi Katabazi | | | |-------------------------|--------|-------------| | Henry Senoga | | Applicants | | Isaac Matovu | | | | | Versus | | | Igantitus Kadoma | | | | Hati Kobusingye | | Respondents |

(Arisingfrom Court ofAppeal No 003 of20lSjudgment at Kampala, before Musoke, Musota JJ and Kasule Ag. JJA Dated 24th July, 2020)

# JUDGMENT OF MWONDHA JSC

I have had the benefit of reading in draft the judgment of my learned brother, Christopher Madram lzama, JSC. I concur with the analysis, decision and the proposed orders.

I hasten to add that Order 6 rule 7 of the Civil Procedure Rules forbids departure from previous pleadings as follows:-

"No pleading shall, not being a petition or application, except by way of amendment raise any new ground of claim or contain any allegation of fact, inconsistent with the previous pleadings of the party pleading that pleading."

This rule was affirmed in the cases also of Jani Properties Ltd. versus Dar-es-salaam Ctty Council [19661 EA 281; and Struggle Ltd versus Pan African Insurance Co. Ltd (1990) ALL 46, 47.

The Court stated, "the parties in Civil matters are bound by what they say in their pleadings, which have the potential for forming the record

narrower, the Court itself is also bound by what the parties have stated in the pleadings as to the facts relied on by them. No party can be allowed to depart from its pleadings.

It's apparent that the appellants did not plead the fact of footpath as clearly discussed in the lead judgment.

Dated at Kampala this ....................................

Mwondha

# JUSTICE OF THE SUPREME COURT

### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: OWINY - DOLLO, CJ, MWONDHA, TIBATEMWA - EKIRIKUBINZA, CHIBITA & $MADRAMA$ ; JJ. S. C.]

### CIVIL APPEAL NO. 23 OF 2020

### **BETWEEN**

1. STEVEN KALANZI KATABAZI

2. HENRY SENOGA

**::::::::::::::: APPELLANTS**

3. ISAAC MATOVU

### **AND**

#### 1. IGANTITUS KADOMA **RESPONDENTS** 2. HATI KOBUSINGYE

[Appeal from the Judgment of the Court of Appeal at Kampala before Hon Lady Justice Elizabeth Musoke, Hon. Mr. Justice Stephen Musota and Hon. Justice Mr. Remmy Kasule dated 24^th July, 2020 in Court of Appeal Civil Appeal No. 003 of 2018 also arising from the Judgment of the High Court of Uganda (Land Division) per Bashaija, J in Civil Suit No. 524 of 2014.]

## JUDGMENT OF PROF. TIBATEMWA-EKIRIKUBINZA, JSC.

I have had the benefit of reading the judgment of my learned brother, Hon. Justice Christopher Madrama Izama, JSC. I agree with his analysis and decision that this appeal should be dismissed with costs to the respondents.

Dated at Kampala this $12$ day of $2023$ .

In usatemin. PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

# AT KAMPALA

#### (CORAM: OWINY-DOLLO, CJ; MWONDHA; TIBATEMWA-EKIRIKUBINZA, CHIBITA; MADRAMA; JJ. SC.)

### CIVIL APPEAL NO: 23 OF 2022

### **BETWEEN**

- 1. STEVEN KATABAZI - 2. HENRY SENOGA - 3. ISAAC MATOVU :::::::::::::::::::::::::::::::::::: AND

### 1. IGANTITUS KADOMA

2. HATI KOBUSINGYE ::::::::::::::::::::::::::::::::::::

[Arising from Court of Appeal No. 003 of 2018 judgment at Kampala, before Musoke, Musota, JJ and Kasule Ag. JJA Dated 24^th July, 2020]

## **IUDGMENT OF CHIBITA, ISC**

I have had the benefit of reading in draft the judgment prepared by my learned brother, Hon. Justice Christopher Madrama Izama, JSC and I agree with his reasoning and his decision that this appeal be dismissed.

I also agree with the orders that he has proposed.

Dated at Kampala this .................................... ustice Mike I. Chibita **IUSTICE OF THE SUPREME COURT**