Katabalwa v Kalyemenya (Civil Appeal 20 of 1993) [1994] UGHC 110 (14 February 1994)

Full Case Text

THE INFUBLIC OF UCANDA

IN THE RICH COUPE OF UGAPDA AT KARPADA

CIVIL APPEAL NO. 20 OF 1993.

STANLEY KATABAINA ------------------ APPETTATO

**V. BRSUS**

---------------- RESPONDENT HENRY KALYEMENYA ----------BEFORE: THE HONOURABLE MR. AG. JUSTICH J. B. A. HARUTSI

## JUDGMERT

Katabalwa now the appellant sued Kalyemonya now respondent in a court of Magistrate Gr. II Maddu. Both claimed to be title holders over the suit property. Katabalwa who claimed to become of joint title holders claimed to have discovered squarters on his These squatters on being challenged claimed title from land. the respondent. Katabalwa took the respondent to court claiming that he had sold plots off his land. Both parties examined a number of witnesses. At the end of the day the trial Magistrate entered judgment in favour of the plaintiff. He made an order ordering the defendant to remove his tenants from the "plaintiff's land." In making the order he made a rather curious observation that: "After all the defendant has 50 acres to his credit where he can percefully settle them." He made another curious order: "the plaintiff is not entitled to compensate these trespossers. So they should seek compensation from the defend at if ray."

It should be noted that these so-called treepassers were not a party to the suit. The court was virtually condemning then unheard.

Kelyemenya appealed to the Chief Magistrate who according to his order allowed the appeal "in part" and ordered a retrial. Katabalwa now appeals to this court on six grounds:-

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17 FFR 2009

- 1. That the learned Chief Magistrate in appeal erred in law when he failed to resolve a substantial question of law regarding the competency and jurisdiction of the tried- Magistrate Gr. Il's court. - 2. TEAT the learned Chief Magistrate in appeal erred in lav/ by mating ai improper order that the suit goes on a retrial before another court of competent jurisdiction when the ground of appeal challenging the competency and or jurisdiction of the trio.1 court was not resolved and or without ruling a.s to what/which is that other court apart from the trial court. - 3. THAT the learn-.'d Chief Magistrate in appeal erred in law by pros.toeing the unsigned pleading as bad in law and could not be cured without addressing his mind to Rule l(i) of the statute to the Magistrates^ Courts Act. 13 of 1570 and without due regard to the fact that the parties v/ere not represented by counsel at the trial. - 4. That the learned Chief Magistrate in appeal erred in lav/ when ho allowed the appeal solely on the basis of a, more technical oversight without giving due consideration to the merits of the case end non at all to the other grounds of appeal. - 5, THAT the learned Chief Magistrate in appeal misdirected himself and erred in lav/ when he reversed the original position of the parties in ordering for a retrial by directing the them. Appellant (original Defendant) to file a proper plaint for re-trial of the suit when the said appellant (original defendant) had never filed any plaint in the first instance. - 6. TTIAT the learned Chief Magistrate erroneously arrived at the conclusion that the subject of the nppeal v/as a, case fit and proper for a retrial without giving good end sufficient reasons leading liin to such a conclusion and io his subsequent order for a retrial.

♦.-</3

Beginning with first ground*t* I find that one of the grounds of appeal "before the learned Chief Magistrate touched on the issue of jurisdiction. That ground was:

1, THAT the trialmagistrate erred in law when he misled the two parties to hear the case involving land dispute with land titles which he has no jurisdiction.

I need point out here that the appellant before the Chief Magistrate was the respondent here. He appeared in person and the above ground was not argued before the Chief Magistrate, It is not correct, to say that a court of a Magistrate Gr, II cannot entertain any litigation involving & AI'TOU vs. I/TUHOrroSIIOPu & CO. /TSTj^I. C. B. 13. In this case both parties had submitted to the jurisdiction of the court. The plaint gave the cause of antion as g land which has title IJUruTRUTA

(a) removing boundary narks

(b) charcoal burning

Prom the above cause of action as given by the plaintiff I cannot read anything to oust the jurisdiction of a Magistrate G-r, II, is true to say that the learned Chief Magistrate in his jud/picnt did not touch on this ground of appeal. As will bo seen later the Chief Magistrate never considered the merits of the appeal at all. However it

On the second ground it is not clear whet the order <ma.de> by the Chief Magistrate meant The suit had been before a court of a, Magistrate Gr, II, His order was for the suit to be tried by "another court of competent jurisdiction. ii

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Perhaps he meant before a another magistrate with competent jurisdiction.

On the third ground Civil Procedure in courts presided over by a magistrate Cr. II or III is governed by the third Schedule to the Magistrates Courts' Act 1970. Rule 11(1) of the 3rd Schedule provides as follows:-

> "Subject to the provisions of paragraph(2) of this rule where a person not being represented by an advocate desires to institute a suit he shall state, either orally or in writing as may be directed<br>by the Magistrate, the nature of the<br>claim against the defendant and if the statement is oral, the Magistrate shall record the substance in writing."

It is clear from this rule that a litigant before these courts need not commence his suit with a plaint. What is important is that the substance of complaint is given to the court and that both parties before the court know why they are before the court There is no doubt that both parties before the court in this case knew the substance of the matter before the court. It was not necessary for the plaintiff to present a prepared and signed plaint to the court. The Chief Magistrate was therefore wrong when he gave the presence of an a unsigned plaint prominence when after all a plaint was not necessary. Even if a plaint was not signed it would not have rendered the pleading bad in law to the extent that it could not be cured as held by the learned Chief Ic/istrate. If would have been a defect procedure curable by appropriate amendment S. W. KULUBYA v. UMAR SINCH Civil case No. 116/60.

As reports the fourth ground it is clear that the merits of the oppeal were not considered by the learned Chief Magistrate. After erroneously finding that: "Unsigned

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pleading is bad in law. It cannot be cured," he held that on that ground alone he was prepared to allow the appeal.

On the fifth ground what happened can in *ny* opinion be looked at ub the slip of the pen rather than the slip of the mind. The learned Chief lEagistrate could not have meant that the original defendant was to turn himself into a plaintiff.

a sound decision. RADII AJ RUSC-2J3 M. KBEMAN V. I-ACH ABAI IKJRLI observed above case a new trial provides a party with judicial advice on which he can remedy such defects as existed in his case when originally presented. This of course is to the prejudice of his opponent, thus leading to injustice. Such a trend should be regorously avoided. As regards the last ground a retrial should only be ordered DEAR /T960/E. A. I. vzas where the appellant court finds that in the evidence there was insufficient material upon which an appella^ court could come to

The totality of what I have said herein above boils to one tiling. The learned Chief Magistrate did not attempt to consider the appeal before him on merit. The result is that this file will be sent to the Chief Magistrate with a directive that he hours end decides the Appeal before him on its merits\*

Costs of the appeal hero will be costs in the *i*cause. That is to abide the event in the Chief Magistrates' Court.

> J. B. A. KAFuTSI "AG., JTO(S\_ 14/2/1394.

.14-2-94

Kyerere rv.ru'ioixwCcfof. tliAp^ppellant Ms. luswuta for Respondent Addele - Court Clerk Judcncnt read in open court.

J. B. A.<KATUT.il> 14/2/1994.