The Management Committee Nyamirima Primary School v Mwesigwa Kamungwa (HCT-05-CV-CA-001-1997) [2011] UGHC 202 (8 August 2011)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA

## HCT-05-CV-CA-001 -1997

APPELLANT VS THE MANAGEMENT COMMITTEE NYAMIRIMA PRIMARY SCHOOL..

EPHRAIM MWESIGWA KAMUNGWA RESPONDENT

## **c DIRECTIONS**

**I**

**c**

<sup>I</sup> have perused the record of the lower court and <sup>I</sup> entirely agree with the findings of both counsel that part of the record is missing.

*I#*

- 1. According to copies of typed proceedings on Nasaniri Kishongora (PW3) concluded his testimony of 27/10/1992, and the case was adjourned for further hearing to 5/11/1992; to enable the Plaintiff call its other witnesses. - 2. The record of the lower court does not show whetherthey were called or how and when the Plaintiff closed its case. - 3. Thus, the typed record gets very confused from pages, 19, 20, 21 and 22. On page 20, when the Plaintiff is supposed to have called its last witness, there is nothing to show that any witness testified. On page 21 however, there is evidence recorded, of someone who is not named and who cannot be determined. Even then, the recording of the evidence of the unknown witness appears to start in the middle of his or her testimony. The evidence is not attributed to anyone. On page 22 of the proceedings, there is

evidence of DW2, Yosia Rweicumu. It is therefore not clear how or whether the Plaintiff ever closed its case **OR** whether or how the Defendant opened his case.

4. In the circumstances, one option would have been to have the record certified by a Magistrate at the trial court. However, the certification would not bridge the gap of the missing record. The other option would have been to proceed on basis of the available record, but the High Court being a court of record, it would be improper to act on such a record. *<sup>J</sup> O*

**THEREFORE:-** It is directed that the file be remitted to Bushenyi Court where it originated from, for the Chief Magistrate to summon the parties and conduct a fresh trial. It is a very sad state of affairs for a case of the 1980s, but parties should be made to appreciate the situation that this court being a court of record, not only creates the record but also acts on proper record.

Bashaija K. Afrarew Judge 08/8/2011

*&*