IN THE HIGH COURT OF UGANDA
HOLDEN AT MBARARA
CIVIL APPEAL NO 12 OF 1971
[ORIGINAL Civil Appeal No MMB 91 of 1966 of the Chief Magistrate's Court of Mbarara Before: P,A.P.J. Allen, Esq., Chief Magistrate.]
V E R S U S
The appellant in this case, Moses Maduka was the plaintiff at the trial before a Magistrate Grade III sitting at Bisheshe. The appellant instituted the suit to prevent the respondent from trespassing on his land. The Magistrate Grade III heard the case and visited the locus in quo. He gave judgment for the plaintiff/appellant. The respondent has never appealed against that judgment.
The appellant complains that after getting judgment in his favour, the trial magistrate went to the land and planted a boundary which was contrary to his judgment.
It would appear that the appellant instituted this appeal after he had been unsuccessful twice; before a Magistrate Grade II and before the Chief Magistrate. The Magistrate Grade II failed to re-hear and re-adjudicate the case as he was bound to on first Appeal and his judgment is of no assistance to this Court. The judgment of the Grade II Magistrate is in the following terms:
The evidence of Kamihando who is the witness of the respondent showed that the land in question belonged to the respondent.
As the lower court erected boundaries to separate the two parties, I do not see the reason why the appellant was not satisfied when he was the successful party in the lower court.
It is obvious that the Grade II Magistrate was not satisfied from the evidence that the appellant had established his claim. In such circumstances, the correct decision should have been to set aside the judgment of the trial Magistrate. But, this he did not do, presumably, because the judgment in favour of the appellant, did for all purposes remain a decision on paper when the boundaries drawn in fact meant that the respondent had been the successful party.
The appellant appealed to the Chief Magistrate against the judgment of the magistrate Grade II. His memorandum of Appeal stated that he had appealed to the Magistrate Grade II to put right the boundaries so that they are in accord with the judgment of the trial court.
The appellant, in his address mentioned that the respondent had sold the land to a third party.But, this fact was not in the evidence at all.
The Chief Magistrate dismissed the appeal as incompetent. He said inter alia;
The original suit was instituted in 1966 and presumably, the appeals were lodged in accordance with the Magistrates' Courts Act, 1964 [Cap. 36]. That Act continues to apply to proceedings instituted before the Repeal of the Act by the Magistrates' Courts Act, 1970: see Section. 4, Reg. 2 of Act 13 of 1970.
The right of appeal in Civil cases was governed by s. 32 of the Act Cap. 36 and the relevant parts of that section read:
1) unless otherwise expressly provided by this or any other enactment, an appeal shall lie as of right from a decree or any part of a decree and from any order of
b) a Magistrate's Court presided over by
i) a Magistrate Grade II in the exercise of its original or appellate civil jurisdiction; or
ii) ............to the Magistrate's Court presided over by a Chief Magistrate.
It is clear from this section quoted above that the appellant had a right of appeal against the judgment of the Magistrate Grade II if he was aggrieved by it. He had secured judgment in his favour on paper only when his action was to recover the land in dispute with the respondent.
The appellant was properly aggrieved by its effect and the Chief Magistrate ought to have heard the appeal and decided the case on its merits.
In the course of all the appeals lodged by the appellant the respondent did not cross-appeal against the judgment of the trial Magistrate which was, on the face of it, against him. Before the Chief Magistrate, he was content to ask for the appeal to be dismissed. The Chief Magistrate appears to have been surprised by this course of action.
"The respondent merely asks for the appeal to be dismissed. This seems odd in view of the fact that the judgments of the Courts below are against him and, from the record, he has good grounds of appeal available to him."
If the appellant's allegations are true, the respondent lost the suit in court but, retained the land. In those circumstances, he could not see any purpose in disturbing the status quo.
I take into account that the parties have not adduced evidence on the issues in this appeal. However, I am satisfied that the judgment of the trial Magistrate was correct. He had the opportunity to hear the parties and visit the locus in quo. He then decided the case in favour of the plaintiff. What remains is to give effect to that judgment.
It would appear to me that the best way out at this case is to appoint the Magistrate Grade II and the local chiefs of the area to ascertain the boundaries of the land in dispute before the suit was filed in this case.
Accordingly this appeal is allowed with costs in this court and courts below.