Kikafunda Alex v Ferestus Joy Bajooiyi (Civil Appeal 25 of 2023) [2025] UGHC 348 (10 April 2025)

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE**

## **CIVIL APPEAL NO. 0025 OF 2023 (Arising out of Land Civil Suit No. 0127 of 2015)**

10 **KIKAFUNDA ALEX**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**APPELLANT VERSUS FERESTUS JOY BAJOOYI**:::::::::::::::::::::::::::::::::::::::::::::::::::**RESPONDENT**

## **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## 15 **JUDGMENT**

This is an Appeal against the Judgment and Orders of the Chief Magistrate at Kabale Chief Magistrates Court delivered on the 27/06/2023 in favour of the Plaintiff/Respondent in Civil Suit No. 0127 of 2015.

The Plaintiff in her Suit sought a declaration that she is the rightful owner of the

20 Suitland, a permanent injunction against the Defendant, an eviction order and costs of the Suit.

The trial Court in finding in favour of the Plaintiff /Respondent issued a declaration that the Plaintiff is the rightful owner of the Suitland, a permanent injunction restraining the Defendant/Appellant from using the Suitland, an 25 eviction order against the Defendant/Appellant and awarded the Plaintiff/Respondent costs of the Suit.

Dissatisfied with the Judgment and orders of the trial Court the Defendant/Appellant filed this appeal.

5 **Brief background.**

The Plaintiff/Respondent in her Plaint avers that she is the mother of the Defendant and that she bought the Suitland together with her late husband and an agreement was made however the same was lost that they built on this land and later she bought another piece of land adjacent to the Suitland and Planted 10 eucalyptus trees on the top part and crops at the bottom. That when her husband died he was buried on that land and upon the Defendant marrying he chased the Plaintiff off the land claiming the same.

The Defendant/Appellant in his written statement of defence refutes the claim of the Plaintiff/Respondent and avers that he bought the Suitland from three 15 different parties that include one Sanga in 1992, John Bihika in 1994 and Tindikyeyitira in 1994 and that it is not true that the Plaintiff purchased the Suitland with her late husband Bajoogi Brasie.

That all his purchase agreements got lost while in the custody of the then chairperson Kwesiga Moses.

20 The trial Chief Magistrate found in favour of the Plaintiff/Respondent hence the instant Appeal.

The parties to this Appeal were self-represented both at the lower Court and in this appeal. They however appear to have had some assistance from some legal minds in filing their written submissions to which they only appended their

25 thumbprints. Be that as it may I have perused the same and studied the authorities made refence to.

**Duty of Court.**

- 5 It is the duty of this Court as the first appellate Court to subject the evidence on record to a fresh and exhaustive scrutiny, weighing the conflicting evidence and drawing its own inferences and conclusion from it. In doing so however the Court has to bear in mind that it has neither seen nor heard the witnesses and should therefore make allowance in that respect. - 10 **See; Selle versus Associated Motor Board [1968] EA 123.**

**Preliminary Points of Law.**

The Appellant in his written submissions raises Preliminary Points of Law that I find best dealt with first.

- 15 It is the submission of the Appellant that there are errors on the record in exercise of Judicial discretion by the lower Court. The Appellant contends that the matter had been filed before the Chief Magistrate but the record indicates that a Grade I Magistrate dismissed the matter on 16/10/2017 for non-attendance of the Plaintiff but that on the 20/08/2018 a witness was handled and on 07/06/2019 another - 20 Grade One Magistrate issued remedial measures setting aside the dismissal order and granting leave to file a written statement of Defence out of time.

It is the argument of the Appellant that both Grade 1 Magistrates misdirected themselves on their Judicial discretion and ended up occasioning a miscarriage of Justice as they lacked competent jurisdiction to handle the matter and that an 25 order for a retrial ought to issue.

The Respondent in her written submissions in reply did not respond to this submission.

5 **Determination.**

The chronology of the Appellant on the proceedings in Court on the record from the 16/10/2017 to 07/06/2019 is accurate and supported by the record.

The same is well summarized by the trial Magistrate on 07/06/2019 and I will reproduce the relevant excerpt below:

- 10 *1.* "*The Plaintiff filed this Suit and the Defendant was served accordingly.* - *2. Both parties appeared in Court without the Defendant filing a written statement of defence. The matter was sent for mediation, mediation was not successful.* - *3. The Plaintiff regularly missed Court and the matter was dismissed with* 15 *costs on 16/10/2017.* - *4. The defendant filed a bill of costs on 05/12/2017 the same was never served nor taxed.* - *5. On 20/08/2018 both parties appeared in Court and the matter proceeded with the evidence of the Plaintiff.* - 20 *6. There is no application for reinstatement of the case nor an order setting aside the dismissal pursuant to Section 98 of the Civil Procedure Act and considering that both parties are illiterate and not represented.*

*I hereby make the following remedial measures;*

- *(a) Since both parties are in Court today, I hereby allow the Defendant to file* 25 *a written statement of defence in fifteen days from today.* - *(b) The dismissal order and order for costs are hereby set aside.*

- 5 *(c) After filing and service of defence the Plaintiff is given ten days within which to reply to the written statement of defence.* - *(d) The defendant was allowed in proceedings when he did not actually file a defence.*

*Failure to file a defence locks one out of proceedings. I find this irregular and* 10 *therefore will start denovo"*

The trial Magistrate properly analyzed the status of the matter before him and issued orders that were necessary to meet the ends of justice. The actions of the trial Magistrate were unassailable and the Appellant was a key beneficiary of the same having been allowed to file his written statement of defence out of time. In

15 this regard the trial Magistrate properly exercised his discretion.

The criticism that the Magistrates Grade 1 had no jurisdiction to entertain this matter could not be more misplaced.

The plaint and written statement of defence are silent on the present market value of the Suit property and the evidence led in Court placed the purchase price at the

20 time between UgX 65,000 – 70,000/=.

The pecuniary jurisdiction of a Magistrate Grade one is caped at UgX 20,000,000/= as per **Section 207(1) (b)** of the **Magistrates Court Act.**

The submissions of the Appellant that the Magistrates Grade One lacked jurisdiction is therefore not tenable and is rejected.

25 I will now move to the grounds of appeal that I shall handle concurrently since they overlap.

- 5 **Grounds:** - **1. That the learned trial Magistrate erred in law and fact in holding that the Suit property belonged to the respondent.** - **2. That the learned trial Magistrate erred in law and fact when he found that the Appellant had led no evidence to prove that the Suitland** 10 **belonged to him.** - 3. **That the learned trial Magistrate erred in law when he ordered that a permanent injunction and eviction order is issued against the Appellant**. - 15 **Submissions of the Appellant.**

It is the submission of the Appellant that the testimony of the Respondent/Plaintiff was filed with contradictions with the Plaintiff first testifying that she was a resident of Makanga Cell on 20/08/2018 and later on 15/10/2020 she testified to being a resident of Nyakahanga Bugongi and that this 20 shows that the Plaintiffs testimony was filled with falsehoods.

It is the contention of the Respondent/Defendant that PW1 testified that the Defendant had lived on the Suitland for over 10 years and that DW1 testified that

he was the first person to occupy the Suitland.

Further that DW1 testified to having seen 2 purchase agreements relating to the 25 Suitland that showed the same as being purchased by the Defendant. The Appellant is also critical of the Plaintiff/Respondent as not having presented her purchase agreements to the trial Court and that even PW2 whom PW1 had

5 claimed had the draft agreements never presented the said agreements in Court and on the contrary claimed that the Defendant had stolen the agreements.

The Appellant also took issue with the trial Chief Magistrate for noting that the Defendant closed his case without testifying. According to the Appellant he was unrepresented at the lower Court and considering that he is not a legal person

10 the Court ought to have guided him to present his own evidence as a witness in his own case.

The Appellant therefore prays that an order for a retrial is issued.

**Submissions of the Respondent**.

- 15 The Respondent/Plaintiff in her written submissions contends that locus was conducted on the 17/01/2023 and both parties were present and that Court found two houses on the Suitland that is one small house for the Appellant and big houses for the Respondent. That also found on the Suitland was the tomb of the father of the Appellant and husband to the Respondent. - 20 The Respondent further submits that DW1 confirmed that Ferestus Joy, Kikafunda Alex and Margret were all staying on the Suitland and that the trial Magistrate considered the clear background of PW2 on how the Respondent acquired the Suitland.

It is also the contention of the Respondent that the defence hearing was closed 25 without the Defendant testifying and that this was after ten adjournments as the Court waited for the Appellant to present his witnesses but all this was in vain.

5 That as a result the Appellant/Defendant led no evidence on his way to prove that that the land belonged to him

It is therefore the argument of the Respondent that the trial Magistrate properly analyzed the evidence on record and that the Plaintiff/Respondent proved her claim.

## **Determination.**

The trial Magistrate raised the following issues for determination:

- **1) Who is the rightful owner of the Suitland between the parties?** - 2) **Remedies available**. - 15 The analysis of the trial Chief Magistrate is that the Plaintiff testified that she purchased the Suitland from Sanga (now deceased) and that this was witnessed by her children Emmanuel Kikafunda and Kanyishamba Gapito but that she could not remember the year of purchase but that the Plaintiff has been chased from the Suitland by the Defendant who currently occupies the same. That the second 20 portion was purchased from one Bihiika and that her evidence was supported by that of her daughter and sister to the Defendant PW2 who testified that the Plaintiff purchased the Suitland when she was still young in form 6 in 3 parts from Sanga, Bihika and Tindikyeyitira wife to Bihika. The trial Chief Magistrate also observes that DW1 the only witness of the defence testified that he is the LCI - 25 chairman of Nyakahanga since about 2004 or 2005 and that the Suitland has houses on one part and a banana plantation on the other part. That the Defendant occupied it first but that the Plaintiff and PW2 also stayed on the same.

5 That DW1 testified to having moved into that area in 1997 but he did not know when the Suitland was bought and by who and that other children of the Plaintiff were buried on the Suitland.

The trial Chief Magistrate found that the evidence of the Plaintiff was corroborated by that of PW2 and that DW1 had admitted that he did not know 10 who had purchased the Suitland and that at the locus visit Court found a house of the Plaintiff, a banana plantation of the Plaintiff, a latrine of the Plaintiff and on the side the house of the Defendant. The trial Chief Magistrate then proceeded to resolve the first issue in favour of the Plaintiff that she lawfully owned the land.

I find it very curious that the Defendant did not testify in his own defence.

- 15 The record does not reflect that the Court guided the Defendant that he was eligible to give his evidence in defence and his response to the same. This minute in the proceedings would have put to rest any doubts as to whether the Defendant/Appellant was actually aware that he had the right to defend himself at the trial. - 20 It is therefore incumbent upon the trial Magistrates to guide unrepresented litigants on the rules of procedure since they obviously lack the necessary information to properly conduct their case.

The above not withstanding it is my considered opinion that there was sufficient evidence on record to guide the trial Magistrate in arriving at a justifiable 25 decision. I agree in part with the analysis of the trial Chief Magistrate that the Plaintiff's evidence was well corroborated by that of PW2 in relation to her ownership and purchase of the Suit property.

5 Indeed, DW1 admits that he was not present at the purchase of the Suit property having only settled in Nyakahanga Village in 1997. DW1 also testified that their investigations as an LCI Committee revealed that the Plaintiff/Respondent used to contribute money towards the purchase of the Suitland. I would therefore agree with the trial Magistrate that the Plaintiff/Respondent has a vested interest in the 10 Suit property as admitted by DW1 and the locus inquo findings that the Plaintiff/Respondent had a house, banana Plantation and latrine on the Suit property and that the Plaintiff and PW2 were staying there.

I however disagree with the trial Chief Magistrate that the entire Suit property belonged to the Plaintiff/Respondent. The evidence of DW1 is to the effect that in 15 1997 when he settled in the area he found that the Defendant/Appellant had a house on the Suit property together with a banana plantation.

The findings of the trial Chief Magistrate at locus corroborate this evidence with the trial Chief Magistrate making observations that the Defendant has a small house on the Suitland which borders the Plaintiff on the north. The sketch map 20 appears to show that the Defendant/Appellant built his house at the edge of the property with that of the Plaintiff/Respondent being more central. I am inclined to believe that this was deliberate and shows that the Plaintiff/Respondent has a greater interest in this property than the Defendant/Appellant. The presence of tombs including that of the husband of the Plaintiff and father to the Defendant 25 would appear to support this presumption. The trial Magistrate in my considered opinion should have taken into consideration the interests of the Defendant/Appellant on the Suit property despite the fact the 5 Plaintiff/Respondent has greater interest in the same. In this regard I fault the trial Chief Magistrate.

In the result the instant appeal succeeds on all three grounds.

The Judgment and orders of the trial Chief Magistrate are hereby set aside and substituted with the following orders;

- 10 i) That the Plaintiff/Respondent and the Defendant/Appellant both have an interest in the Suit property. - ii) That the Plaintiff/Respondent is entitled to three quarters of the Suit property that shall include the portion on which her house is built while the Defendant/Appellant is entitled to one quarter of the same that shall 15 include where he has built his house. - iii) Either of the parties is at liberty to compensate the other for their share of the property at the prevailing market price. - iv) The parties being mother and son shall each bear their own costs before this Court and the lower Court to foster harmony between them. - 20 It is so ordered.

Before me,

…………..……………………….. **Samuel Emokor Judge** 25 **10/04/2025**