Wakilii

John Tibarabeihire v Erisamu Rumondo and Others (Civil Appeal 5 of 1988)

High Court · [1992] UGHC 110 · 1992 Appeal Allowed — Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Magistrate Grade I judgment (Mbarara Magistrates Court Civil Suit No. 8 of 1987) in family land dispute
Decision
Matter remitted to magistrate's court for fresh hearing before a different magistrate

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal and set aside the lower court judgment, directing a retrial before a different magistrate. The court held that the Magistrate Grade I erred by visiting the locus in quo without justification, calling additional witnesses at the scene without proper procedure, taking unsworn evidence from parties, and basing judgment on evidence recorded by another magistrate without hearing the case afresh. The trial was further vitiated by treating the first plaintiff as representative of co-plaintiffs without a properly filed representative suit, and by the magistrate considering prejudicial irrelevancies in reaching his decision.

Outcome

Matter remitted to magistrate's court for fresh hearing before a different magistrate

Facts

The appellant and three respondents, who were brothers, disputed family land. The respondents sued the appellant in Mbarara Magistrates Court (Civil Suit No. 8 of 1987). A Magistrate Grade II recorded all oral evidence with assessors and visited the locus in quo, making detailed notes and observations. Before judgment, Magistrate Grade I (Mr. Bamwine) took over the case. Without hearing the case afresh, he visited the locus in quo again, took brief unsworn evidence from the parties at the scene, called two additional witnesses (Esta Kyatuma and Edisa Katuna) who testified only at the locus without proper cross-examination, and wrote judgment relying on the evidence recorded by Magistrate Grade II. The Magistrate Grade I accepted a lease offer and certificate of title produced by the appellant at the locus without proper tendering or cross-examination, then made adverse inferences against the appellant based on apparent irregularities in the title. Judgment was entered for the respondents. The appellant appealed on ten grounds through Butagira & Co., Advocates. The respondents, though duly served, did not appear at the appeal hearing.

Issues

  1. Whether the Magistrate Grade I erred in law in visiting the locus in quo when this had already been done by Magistrate Grade II and in calling witnesses at the scene who never testified in court.
  2. Whether the Magistrate Grade I should have heard the case de novo when he took over the case after all evidence had been recorded by Magistrate Grade II.
  3. Whether the trial Magistrate's judgment was coloured by irrelevant considerations including assumptions about undue influence.
  4. Whether the first plaintiff could represent the other plaintiffs when no representative suit had been filed.
  5. Whether the trial Magistrate erred in relying on lease offer and certificate of title produced at the locus in quo without proper tendering in court.
  6. Whether the Magistrate had jurisdiction to try a case involving titled land when he had no power to order cancellation or rectification of certificate of title.

Orders

  • Appeal allowed.
  • Judgment, decree and orders of the lower court set aside.
  • Case to be heard de novo by a magistrate of competent jurisdiction other than the magistrate who tried it.
  • Costs to abide the event (to be paid to the winner at retrial).

Rules and key headnotes

Civil Procedure — Locus in quo visit — Requirements for visiting scene — When justified
A magistrate must give satisfactory justification before visiting the locus in quo; visiting the scene is not simply a matter of 'feeling' and calling witnesses but requires demonstration that it is necessary for the just decision of the case.
Civil Procedure — Evidence at locus in quo — Calling witnesses at scene — Procedure required
Where a magistrate calls witnesses to give evidence at the locus in quo, such witnesses must be sworn, their evidence must appear essential to the just decision of the case under section 98 of the Magistrates Courts Act 1970 or Order 16 Rule 12 of the Civil Procedure Rules, and they must be subject to proper cross-examination.
Civil Procedure — Change of magistrate during trial — When retrial required
Where a Magistrate Grade I takes over a case after all evidence has been recorded by a Magistrate Grade II and is not satisfied with the recorded evidence (as demonstrated by visiting the locus in quo and calling additional witnesses), he should hear the case afresh rather than base judgment on evidence he did not hear, notwithstanding Order 16 Rule 10 of the Civil Procedure Rules permits continuation of trial.
Civil Procedure — Representative suits — Requirements under Order 1 Rule 12(2)
A plaintiff cannot represent co-plaintiffs in a suit without a properly filed representative suit under Order 1 Rule 12(2) of the Civil Procedure Rules; treating one plaintiff as representative of co-plaintiffs without compliance with this rule renders the trial incurably defective and improperly conducted.
Civil Procedure — Judicial decision-making — Irrelevant considerations — Effect on judgment
A trial magistrate's judgment is vitiated where it is coloured by prejudicial irrelevancies, including assumptions not based on evidence (such as assuming a party used undue influence in acquiring land because he was a soldier) or considerations such as court needing to come up with a 'workable solution' as an independent umpire.
Land & Property — Titled land — Jurisdiction of magistrates — Powers regarding certificates of title
A magistrate has jurisdiction to try a case involving registered land under the Registration of Title Act but is precluded from ordering cancellation or rectification of a certificate of title; until the High Court orders cancellation of a certificate of title, it remains unaffected by the decision of the trial magistrate.
Administrative Law — Magistrates Courts — Assessors — Role and binding effect of opinions
Under Rule 27(2) of the 3rd Schedule to the Magistrates Courts Act 1970, a magistrate is not bound by the opinion of assessors in delivering judgment, though where the trial magistrate does not accept assessors' opinions he is bound to give reasons for rejecting those opinions.

Legislation cited (11)

Cases cited (5)

  • J.W. Ononge v Okalang [1986] HCB 67
  • Desouza v Uganda [1967] EA 784
  • Waibi v Edisa Lusi Byandala [1982] HCB 28
  • Fernandes v Noroma [1969] EA 506
  • Katuramu v Attorney General [1986] HCB 39

Full judgment

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John Tibarabeihire v Erisamu Rumondo and Others (Civil Appeal 5 of 1988) [1992] UGHC 110 (17 December 1992)
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.