This is an appeal against the decision of the Grade 1 Magistrate Mbarara
delivered on 20th
August 1991. Four grounds were raised in the memorandum of appeal. They were:
1. That the learned trial magistrate erred in law and in fact in holding that the document of the R.C.III executive referred to by counsel for the defendant/respondents is/was a judgment.
2. That the learned trial magistrate erred in law and in fact in holding that the R.C. III Court was duly constituted whereas it was not.
3. That the learned trial magistrate erred in law in holding that the suit was barred by the doctrine of res judicata.
4. That the ruling of the learned trial magistrate was against the weight of the available evidence and thus caused a miscarriage of justice.
At the hearing of the appeal Mr. Mwene-Kahima
appeared for the appellants while Mr. Katembeko
was counsel for the respondent. It was the argument of counsel for the appellants that the doctrine of res judicata
could not apply to the case before the trial court because there was no judgment by any other court in existence at the time which had disposed of the matter then at hand. He argued that what purported to be a judgment from the R.C. III Court was in fact no judgment as the document was signed by only one person namely Muhumuza
Willy, the Chairman R.C. III Ruhama
. He added that according to the statute setting up R.C. Courts such court could be properly constituted with a quorum of five members; which appears not to have been the case if the R.C. III Court’s document is to go by.
for the respondent argued that the statute which created R.C. Courts did not state anywhere that the judgment of the court should be signed by all members of the committee. He argued further that the R.C. III judgment shows the case was heard and judgment was passed. He said the presumption is that the case was properly heard and that S.4 of the statute referred to the constitution of that court and not to whose signature should appear on the judgment.
I have listened carefully to the arguments on either side. I have perused the document that is being contested but which both parties agree issued from the R.C. III Chairman of Ruhama
What is in issue is whether the doctrine of res judicata
applies to this matter as was the ruling of the learned Grade I magistrate, Mbarara
. For res judicata
to apply the matter ought to have been heard and determined. Where the merits of the matter were not heard and determined the doctrine does not apply. Section 7 of the Civil Procedure Act should be taken into account. In relation to this I must refer to paragraph 388 of