Wakilii

Tumusiime v Nkinze (REVISION CAUSE NO. 002 OF 2010)

High Court · [2016] UGHCCD 145 · 2016 Revision Allowed — Mistrial Declared AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Revision application from Chief Magistrate's Court decision initiated by formal complaint to Inspector of Courts
Decision
Lower court proceedings set aside as a mistrial but no retrial ordered due to changed circumstances and lapse of time

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Holding

The High Court held that the Chief Magistrate acted illegally and with material irregularity by visiting the locus in quo before hearing evidence, deciding the case solely on unsworn testimony of one witness without cross-examination, and denying both parties the right to lead evidence. The court declared the proceedings a mistrial and miscarriage of justice violating Article 28 of the Constitution. However, no retrial was ordered due to lapse of time and change of circumstances, as both parties had sold the disputed land.

Outcome

Lower court proceedings set aside as a mistrial but no retrial ordered due to changed circumstances and lapse of time

Facts

The respondent sued the applicant in the Chief Magistrate's Court of Masaka seeking vacant possession of land in Kyazanga Kitooro Trading Centre. The applicant filed a defence and counterclaim. The case was adjourned 42 times over three years without a single hearing. Before any evidence was heard, the Chief Magistrate visited the locus in quo and called one witness, Abaasi Rutangura, who had sold portions of the land to both parties. Without swearing the witness or allowing cross-examination, the Magistrate accepted Rutangura's account, immediately demarcated the property between the parties, and delivered judgment at the locus. Neither party was allowed to testify or call witnesses. During the locus visit, the Magistrate warned the applicant about allegedly sending threatening SMS messages. The applicant subsequently filed a complaint with the Inspector of Courts in 2008. By the time of the revision hearing in 2016, both parties had sold their portions of the land to third parties who had rebuilt the structures.

Issues

  1. Whether the Chief Magistrate acted illegally and with material irregularity in visiting the locus in quo before hearing evidence and determining the case at that locus without allowing parties to testify or cross-examine witnesses.
  2. Whether the applicant was denied the constitutional right to a fair hearing.
  3. What remedies are appropriate given that the land has changed hands and nine years have elapsed since the original decision.

Orders

  • The proceedings before the Chief Magistrate's Court declared not to be a trial but a mistrial.
  • The trial declared a miscarriage of justice.
  • No order for retrial given lapse of time and change of circumstances.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Locus in Quo Visits — Proper Procedure
When a court visits a locus in quo, both parties and their witnesses must be present, witnesses must testify on oath clarifying what they stated in court, the other party must be given opportunity to cross-examine, and any observation by the trial magistrate must form part of the proceedings.
Civil Procedure — Right to Be Heard — Fair Trial
Where a trial magistrate visits a locus in quo before hearing any evidence, relies on unsworn testimony of a single witness without allowing cross-examination, and does not permit either party to lead evidence or call witnesses, the proceedings constitute a denial of the constitutional right to a fair hearing under Article 28 of the Constitution and amount to an illegality.
Judicial Review — Revisionary Jurisdiction — Grounds for Revision
Under section 83(c) of the Civil Procedure Act, the High Court may revise a case where a subordinate court has acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.
Judicial Review — Revisionary Jurisdiction — Procedure for Initiating Revision
It is sufficient for any aggrieved party or lawyer to write to the Registrar High Court drawing attention to any irregularity of any subordinate or magistrate courts in any decision and requesting that the matter be brought to the attention of the court, as there is no clearly laid out procedure for revision.
Judicial Review — Remedies — Limitation on Revision Powers
The court cannot exercise its revision powers where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person, and where circumstances have materially changed making original relief unattainable, the court may only make declaratory orders and cannot order a retrial.
Constitutional Law — Fundamental Rights — Right to Fair Hearing
Article 28 of the Constitution guarantees everyone the right to be heard and to a fair hearing, and Article 44 provides that this right is non-derogable.
Civil Procedure — Judicial Conduct — Bias and Recusal
Where a judicial officer has a personal dispute with a party to proceedings, manifested by the officer publicly warning the party about alleged threatening messages, the judicial officer should decline to hear the matter to avoid apprehension of bias.

Legislation cited (3)

Cases cited (6)

  • LDC v Edward Mugalu (HCMA No. 63 of 1990)
  • National Enterprises Corporation v Mukisa Foods Ltd (Civil Appeal No. 42 of 1997)
  • Evans v Bartlam [1937] AC 473
  • Makula International Ltd v H.E. Cardinal Nsubuga (1982) HCB 1
  • David Acar & 3 Ors v Alfred Acar Aliro [1982] HCB 60
  • Kabwengere v Charles Kangabi (1977) HCB 83

Full judgment

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

Tumusiime Vs Nkinze (REVISION CAUSE NO. 002 OF 2010) [2016] UGHCCD 145 (1 September 2016)
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.