Butia v Dratele & Another (Miscellaneous Application 37 of 2019) [2024] UGHC 973 (3 October 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

## MISC. APPLICATION NO. 037 OF 2019

## (ARISING FROM High Court Civil Application No. 12 OF 2008)

# BUTIA EDWARD:::::::::::::::::::::::::::::::::::

### **VERSUS**

### 1. RICHARD DRATELE

2. GARD EZAYI::::::::::::::::::::::::::::::::::::

## BEFORE HON. JUSTICE COLLINS ACELLAM **RULING**

#### Brief introduction

This Application was brought by way of Notice under section 98 of the CPA, Order 9 rule 12, Order 52 rule 2, 3 of the CPR for orders that this honourable sets aside an order issued for boundary opening and costs of the application to be provided.

## **Background**

The background of this application is that this honourable court issued an order for boundary opening in Civil Appeal No. 0012 of 2008 arising from Civil Suit No.................................... Applicant sued the Respondents for trespass to land seeking recovery of land, general damages,

- interests, and costs. In the decision of the trial magistrate, he decided against the Applicant and $25$ directed that a new boundary be opened on grounds that the new boundary would enable them co-exist peacefully. The Applicant being dissatisfied appealed to this honourable court. This court however dissented part of the decision of the trial magistrate in respect to opening a new boundary, set it aside on grounds of it being erroneous and not supported by any evidence and fixed in its place the boundary fixed by the sub-county chief in 1974 as explained by and 30 - demonstrated to the trial court by DW4 at the first visit of locus in quo marked by the Woro trees and upheld that this shall continue to constitute the boundary and ought to be respected by both parties.


#### Grounds of the Application. $5$

The grounds on which this application is based is advanced in the affidavit in support of the Application deponed by BUTIA EDWARD on the 6<sup>th</sup> of November 2019 wherein he contends that court issued an order for boundary opening and the boundary was duly opened by Dudu John Ogentho T/A M/S Quick Debt Solutions Auctioneers and court Bailiffs following the letter written to him on the 31<sup>st</sup> day of August 2017 for boundary opening on the 14<sup>th</sup> day of

September 2017. The Applicant adds that the boundary opening was successfully done in the presence of all the

parties and their witnesses as directed by the order of this honourable court and the bailiff filed his report to this honourable court on the 18<sup>th</sup> day of September 2017.

That immediately after the boundary opening the respondents and their agents went and 15 removed all the mark stones and other features that were fixed by the court Baillif of this court which matter was reported to police of Arua Central Police who summoned the suspects but till date they have never been apprehended.

That on the 16<sup>th</sup> day of September 2017, counsel for the Respondents wrote to the Deputy Registrar of this court complaining about the whole process of the boundary opening as directed 20 by the judge on the 14<sup>th</sup> day of September 2017 and as a result of the complaint, the then Registrar on the 21<sup>st</sup> day of September wrote a letter to Mr Kyalula Edward, a bailiff for another boundary opening which was scheduled for the 25<sup>th</sup> day of September 2017.

He adds that the Bailiff went up to the land in dispute together with counsel for the Applicant and in the absence of counsel for the Respondents but the Bailiff did not open the boundary for 25 reasons best known to him. A result of which court wrote to Mr Edward on the 24<sup>th</sup> day of July 2018 for another new boundary opening which was scheduled for 30<sup>th</sup> day of September, during which time, neither him nor his lawyers were informed or notified and the boundary was opened contrary to the orders issued by this court and the returns in the same were not filed in court.

#### 30 Grounds in Opposition

In opposition of the Application, the Respondents filed and affidavit in reply deposed by Richard Dratele wherein he contends that the Application is bad in law and must be dismissed with costs since it arises from a dismissed Appeal No. 012 of 2008. The 1<sup>st</sup> Applicant relates that the first boundary opening was done with a lot irregularities and it wasn't successful which prompted

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them to complain and a new boundary was opened. That at all times, the attempt to open $\mathsf{S}$ boundary has failed because of chaos caused by the Applicant's relatives. The Respondent concludes that this is a concluded case where the appeal was dismissed and boundary opening fully completed and this Application is just aimed at wasting courts time and must be dismissed without costs to them the Respondents.

#### 10 **ISSUE**

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Whether this honourable court can set aside the orders for boundary opening and issue fresh instructions for opening of the boundary.

### **Determination**

I have considered the submission of the Applicant, affidavit in support of the Application and reply to the affidavit and all documents constitutive of the Annextures.

I wish to note that a citizen whose constitutional rights are allegedly being trampled upon must not be turned away. Once his complaint is arguable, a way must be found to accommodate him so that other citizens become knowledgeable of their rights" See Attorney General Vs Ali & orstarts(1989) LRC 474 PAGES 525-526

20 The above is crucial bedrock which ought not to be ignored.

It's the Applicant's grievance that when an order was made by the Registrar on the 24<sup>th</sup> day of July 2018 for another new boundary opening which was scheduled for 30<sup>th</sup> day of September, the same was carried out but at which boundary opening he and his lawyers were never notified nor informed of the boundary opening and the boundary was opened contrary to the orders issued by this court and the returns in the same were not filed in court.

In response to the above allegation, the Respondent does not refute the above allegation, court

was left with the belief that indeed the boundary opening was done without the participation of the Applicant and his lawyers.

Therefore, subject to the above, I hereby set aside the order and issue fresh instructions to both 30 parties to opening the boundary reflecting the orders made in the judgment in Civil Suit No. 0012 of 2008 where in Justice Mubiru ordered the boundary to be that which was fixed by the Sub-County Chief in 1974 as explained by and demonstrated to the trial court by DW4 at the first visit of locus in quo marked by the Woro trees.

The boundary must reflect the orders made in Civil Suit 0012 of 2008 without deviation in the $\mathsf{S}$ presence of both parties.

I hereby make the following orders;

- 1. The order issued by the Registrar instructing a new boundary opening on the 30<sup>th</sup> September, 2017 is hereby set aside. - 2. Each party to appoint shall appoint an independent surveyor of their own choice at their own costs to open the boundary in accordance with the direction and orders of court in Civil Suit 0012 of 2008. - 3. Both surveyors shall file a joint report in court. - 4. The exercise shall be conducted by both parties or their representatives in the presence of Police Officer in charge of a station and L. C. 1 chairperson where the land is situated. - 5. Each party shall bear their own costs in respect to the Application.

Breaday of Defober 2024 Delivered at Arua this .....

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| | <b>COLLINSACELLAM</b> | |--|-----------------------|

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**JUDGE**

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