Wakilii

Swali Alli v Amisi Daudi (Civil Appeal No. 46 of 2024)

High Court · [2026] UGHC 750 · 2026 Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from judgment of Chief Magistrate's Court in land dispute
Decision
Matter remitted to Chief Magistrate's Court for retrial on account of procedural irregularity denying appellant fair hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed a preliminary objection to the timeliness of the appeal to proceed by invoking its discretion under s.98 of the Civil Procedure Act where the delay was only one day. However, the court found that the trial magistrate committed a procedural irregularity by admitting the respondent's witness statements as evidence in chief without prior agreement at the scheduling conference and without service on the illiterate, self-represented appellant. This violated the appellant's constitutional right to a fair hearing under Article 28(1). The judgment and orders were set aside and the matter remitted for retrial with no order as to costs.

Outcome

Matter remitted to Chief Magistrate's Court for retrial on account of procedural irregularity denying appellant fair hearing

Facts

The appellant sued the respondent in the Chief Magistrate's Court claiming ownership of approximately 23 acres of land in Yumbe District which he alleged he inherited from his late father. The respondent counterclaimed that he inherited the suit land (estimated at 10 acres forming part of 236 acres) from his late father. The trial magistrate found for the respondent and dismissed the suit with costs. The appellant appealed to the High Court. During the trial, although both parties had agreed at the scheduling conference to proceed by oral testimony (both being illiterate), the respondent was permitted to file and rely on witness statements in English for four of his five witnesses. These statements were filed two days before trial, were not served on the self-represented illiterate appellant, and the appellant was required to cross-examine on documents he could neither read nor understand.

Issues

  1. Whether the appeal was filed out of time and should be struck out.
  2. Whether the trial court erred in allowing the respondent to proceed by way of witness statements without prior agreement of both parties.
  3. Whether the appellant was accorded a fair hearing where witness statements were admitted without service on the unrepresented and illiterate appellant.

Orders

  • Preliminary objection overruled.
  • Judgment and orders of the trial court set aside.
  • Matter remitted to the lower court for retrial.
  • No order as to costs.
  • Each party to bear their own costs.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Requirements for Valid Preliminary Objection
A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Civil Procedure — Appeals — Time Limits — Court's Discretion to Condone Minimal Delay
Where an appeal is filed one day out of time, the court may exercise its discretion under s.98 of the Civil Procedure Act to hear the appeal on its merits rather than striking it out, particularly where the delay is not inordinate and would otherwise defeat the ends of justice. The administration of justice normally requires that the substance of disputes be investigated on the merits and errors or lapses should not necessarily debar a litigant from pursuit of their rights.
Civil Procedure — Evidence — Witness Statements — Scheduling Conference Agreement Controls Mode of Evidence
Where parties agree during a scheduling conference to proceed by oral testimony, the trial court cannot subsequently allow one party to present evidence through witness statements without the agreement of both parties. The procedure agreed at scheduling conference governs the conduct of trial.
Civil Procedure — Evidence — Witness Statements — Service Requirements
Under Order 18 Rule 5A(10) of the Civil Procedure Rules, a witness statement must be signed by the witness, filed in court, and served on the opposite party before it can be tendered as evidence in chief. Failure to serve witness statements on an illiterate self-represented litigant denies that party the ability to prepare and respond, violating the right to a fair hearing.
Constitutional Law — Fair Hearing — Procedural Irregularities Denying Meaningful Participation
Article 28(1) of the Constitution guarantees every litigant a fair hearing in the determination of civil rights. Where an illiterate self-represented party is required to cross-examine on witness statements written in English, which were not served and which the party can neither read nor understand, the trial court's acceptance of such statements as evidence in chief violates the constitutional right to a fair hearing.
Administrative Law — Illegality — Court's Duty to Refuse to Sanction Illegality
A court cannot sanction that which is illegal. An illegality need not be pleaded or raised by the parties; the court can determine illegality suo motu once it observes it. Where there is illegality ex facie on the record, the court has a duty to refuse to enforce or give effect to the irregular procedure.
Civil Procedure — Appellate Jurisdiction — Setting Aside and Remitting for Procedural Irregularity
Where the trial court has conducted proceedings in a manner that denied a party the right to be fairly heard and to defend their case, the appellate court is constrained to set aside the judgment and remit the matter for retrial rather than attempting to sanitize or give legal effect to an irregular procedure.

Legislation cited (12)

Cases cited (13)

  • Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd (1969) E.A. 697
  • Quick Enterprises Ltd v Kenya Airways Corporation (High Court (Kisumu) Civil Case No. 22 of 1999)
  • Ssekazi Godfrey v Kyeyune David (Civil Appeal No. 109 of 2015)
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 8 of 1998) [1999] E.A. 22
  • Essaji v Solanki [1968] E.A. 218
  • Pandya v Republic [1957] E.A. 336
  • Father Narsensio Tibebaga and Others v Eric Begumisa (SCCA No. 17 of 2002)
  • Seruwagi Mohamed v Yuasa Investments Ltd (Civil Suit No. 334 of 2013)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)
  • Chief Harold Sodipo v Lemminkainen Oy & Another (SC 149/1983) [1986] NGSC 9 (17 January 1986)
  • Snell v Unity Finance Limited [1964] 1 All E.R. 680
  • N.W. Salt and Co. Ltd v Electrolytic Alkali Co. Ltd [1914-15] All E.R. Rep. 752
  • George v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 71

Full judgment

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Swali Alli v Amisi Daudi (Civil Appeal No. 46 of 2024) [2026] UGHC 750 (6 July 2026)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.