[2024] UGHC 769

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT ARUA

# CIVIL SUIT NO. 0014 OF 2014

# BUATRE BAPTISTA ::::::::::::::::::::::::::::::::::::

### **VERSUS**

#### **1. LEAF TOBACCO & COMMODITIES (U) LTD** 10

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2. MERIDIAN TOBACCO COMPANY LTD: DEFENDANT

# BEFORE HON: JUSTICE COLLINS ACELLAM

### **RULING**

#### 15 Introduction and Background.

The background of this suit as discerned form Court record is that; the Plaintiff brought this suit on 6th June of 2014 against the defendants jointly and severally is for trespass to land situate at Pajulu/ Olevu village Ewaa Parish, Ajia Sub-county, Vurra County, in Arua District, recovery of 8 hectares of land illegally transferred by the 1st Defendant to the 2nd Defendant and encroached upon by the 2nd Defendant without the Plaintiff's consent, recovery of 360,000,000/= being the balance outstanding on the purchase price of 20 acres of land owed to the Plaintiff by the 1st Defendant, general damages, and costs of the suit.

The plaintiff in his Plaint avers that he is the customary owner of over 20 acres of land situate at Pajulu/Olevu village, Ewaa Parish, Ajia Sub-County, Vurra County in Arua District hereinafter

referred to as the suit land. That in 2011, the 1st Defendant represented by his lawyer Ibrahim Abdu of M/s Alaka & Co. Advocates expressed interest to purchase 20 acres of the said land from the Plaintiff and after consultations of his brothers, the Plaintiff agreed to sell. That the land was measured with aid of surveyors and it was found to be in excess of 20 acres. That the Plaintiff tagged a purchase price of UGX 700,000,000/= for the land but the 1st Defendant

rejected the price but the Plaintiff after consultation with his brothers decided to sell the land at 30 UGX 500,000,000/=. That there is no written sale agreement of the said suit land. That out of the UGX 500,000,000/= the Plaintiff was only paid UGX 140,000,000/= by the Advocates of the 1st Defendant. And have never paid him the outstanding balance of 360,000,000/=. That the 1st Defendant subsequently transferred the suit land 8 hectares and 20.28 acres of land without permission from the Plaintiff. That the 1st Defendant forged a sale agreement for the 35 sale of land and got a certificate of title for the suit land.

The 1st and 2nd Defendants on the other hand in their joint written statement of Defense stated that before entering into a sale Agreement and engaging surveyors to measure the land they obtained written consent and verification of ownership from the Plaintiff and all concerned parties and that the 1st Defendant and the Plaintiff mutually agreed for the sale price to be UGX 140,000,000/= and that both parties voluntarily entered into the land sale agreement. The

$\mathcal{L}$

$20$

$\mathsf{S}$

Constitution, the courts are enjoined to administer substantive justice without undue regards to technicalities. It is not a mandatory requirement under Order 17 Rule 4 of the CPR, that if a party is given time to do a specific act and fails to do it the court must go a head and dismiss the suit immediately. This depends on the nature of the act that a party has defaulted on. Order 17 Rule 4 gives court the discretion, which must be exercised judiciously. Thus Order 17 rule 4 of the CPR must be applied with keen regard to the facts of the matter and the interest of administering substantive justice."

The issue in the above case, was that the Appellant/ Plaintiff had even filed his witness statements and was in court and ready to proceed but failed to serve the Respondent/ Defendant on time. Therefore, the Judge stated that the failure to serve the same upon the Respondent's Counsel on time was curable by giving the parties some more time.

However, distinguishably from the above case, the facts of the case at hand are different. In the case at hand the Plaintiff filed witness statements but failed to fully lead his evidence and despite court issuing various hearing notices to be served on him and Counsel for the Defendants serving

the same on him, an affidavit of service filed, he did not turn up on the day of the hearing of his $20$ case. Such a default can not be cured under Article 126 (2)(e) of the Constitution.

Given the circumstances of this suit where the Plaintiff failed to appear in court and fully lead his evidence and be examined on the same, I am inclined to believe that it is either the Plaintiff is no longer interested in the suit or does not have enough evidence to pursue his case. It is

therefore not fair for the Defendants to keep appearing and accumulating costs without the 25 Plaintiff appearing despite the numerous hearing notices served on the Plaintiff and him being in the know of the hearing.

I accordingly dismiss this suit with costs.

I so order

$\frac{y}{\cdots}$ day of Dated at Arua this.

Hon. Justice Collins Acellam

35 Judge

$\mathsf{S}$