Wakilii

Sewava Ssalongo and 18 Others v Male Mukasa and 2 Others (Revision Application 34 of 2018)

High Court · [2021] UGHCLD 471 · 2021 Revision Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Revision application from Chief Magistrate Court of Nabweru at Kasangati arising from Civil Suit No. 073 of 2013
Decision
Matter remitted to trial court to allow applicants to cross-examine DW1 before proceeding

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a co-defendant may cross-examine another co-defendant or that co-defendant's witness where their interests conflict. The trial magistrate committed a material irregularity by denying the applicants the opportunity to cross-examine a co-defendant's witness whose evidence conflicted with their defence. The order condemning applicants to costs for non-appearance was a proper exercise of discretionary power. Revision application partially allowed.

Outcome

Matter remitted to trial court to allow applicants to cross-examine DW1 before proceeding

Facts

The applicants were defendants in Civil Suit No. 073 of 2013 before the Chief Magistrate Court of Nabweru at Kasangati concerning ownership of suit land. During trial, after DW1 (a witness for the 2nd respondent, a co-defendant) testified, counsel for the applicants sought leave to cross-examine DW1 on grounds that the 1st defendant was conniving with the plaintiff and that DW1's evidence conflicted with the applicants' defence. The trial magistrate denied the application, stating there was no procedure for cross-examination of a co-defendant's witness by another co-defendant. On a separate occasion, when the matter was adjourned for hearing on 2 July 2017, neither the applicants nor their counsel appeared. Counsel had another matter before the High Court Commercial Division but failed to inform the court or opposing counsel in advance. The trial court condemned the applicants to costs of UGX 300,000 payable before the next adjournment. The applicants brought this revision application challenging both rulings.

Issues

  1. Whether the affidavit in support of the revision application was competent when sworn by only one of nineteen applicants without written authority from the rest.
  2. Whether the trial magistrate exercised jurisdiction illegally or with material irregularity by denying the applicants the right to cross-examine a co-defendant's witness.
  3. Whether the trial court acted irregularly in condemning the applicants to costs of the day for non-appearance.

Orders

  • The trial Court is directed to allow the Applicants to cross-examine DW1 before proceeding with the case.
  • The original trial record and this order should be returned to the trial Court for that purpose.
  • Costs of this application to the applicant.

Rules and key headnotes

Civil Procedure — Revision — Grounds for Revision — Material Irregularity
Under Section 83 of the Civil Procedure Act, the High Court may revise a magistrate's decision where the lower court exercised jurisdiction illegally or with material irregularity or injustice. The section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it, and is not directed against conclusions of law or fact where jurisdiction is not involved.
Evidence — Cross-Examination — Right of Co-Defendant to Cross-Examine
Where the interests of co-defendants conflict, one co-defendant is entitled to cross-examine another co-defendant or that co-defendant's witness. A co-defendant whose defence is prejudiced by another co-defendant's evidence must be treated as an adverse party for purposes of cross-examination under Section 136(2) of the Evidence Act.
Civil Procedure — Affidavits — Multiple Applicants — Authority to Swear on Behalf of Others
Where an affidavit in support of an application is sworn by one of multiple applicants in his own capacity without purporting to act on behalf of the others, no written authority is required. However, applicants who do not file their own affidavits in support place themselves outside the ambit of the application, rendering it defective as to them, though not fatal to the application of the deponent.
Civil Procedure — Costs — Discretionary Power to Award Costs for Non-Appearance
Under Order 17 rule 3 of the Civil Procedure Rules, where a party fails to appear on the day fixed for hearing, the court has discretionary power to condemn that party to costs payable before the next adjournment. The exercise of this discretion is within the law and does not constitute illegality or material irregularity.

Legislation cited (9)

Cases cited (10)

  • Matembe v Yamuringa [1968] EA 643
  • Yustus Tinkasimire and Others v Attorney General and Dr. Malinga Stephen (H.C.M.C No. 35 of 2012)
  • Ssenyimba Vincent and 2 Others v Birikadde Peter and Another (M.A. No. 378 of 2018)
  • Kyawo David v Kamangire Herbert (HCCR No. 01 of 2012)
  • Opwanya Daniel v Oodo Stephen Iporotum (HCCR No. 01 of 2012)
  • Abiro Margaret v Eswagu William (HCCR No. 9 of 2014)
  • Nadiope and 8 Others v Maluku Development Association Ltd (H.C.M.A No. 0073 of 2010)
  • Bwambale Byasaki v Shaka Augustine (H.C.M.A No. 0064 of 2014)
  • Sri Mohamed Ziaulla v Mrs. Sogra Begum and Another ILR 1997 KAR 1378
  • Lord v Colvin (1855) 24 LJ Ch 517

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Sewava_Ssalongo_and_18_Others_v_Male_Mukasa_and_2_Others_(Revision_Application_34_of_2018)_[2021]_UGHCLD_471_(1_March_2021)
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.