Uganda Legal Information Institute - Principles https://old.ulii.org/tags/principles-5 en Ogweyo v Oguttu (HCT-04-CV-CA-0177-2013) [2016] UGHCLD 79 (21 November 2016); https://old.ulii.org/ug/judgment/hc-land-division/2016/79 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/principles-5" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Principles</a></li><li class="field-item even"><a href="/tags/res-judicata-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Res Judicata</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA </strong></p> <p><strong>HOLDEN AT MBALE</strong></p> <p> </p> <p><strong>HCT-04-CV-CA-0177-2013</strong></p> <p><strong>(ARISING FROM BUSIA LAND CIVIL SUIT NO. 0033 OF 2011)</strong></p> <p> </p> <p><strong>YOFISA OGWEYO ADYERI::::::::::::::::::::::::::::::::::::           APPELLANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>OGUTTU EMMANUEL OKUMU::::::::::::::::::::::::::::::::::RESPONDENT</strong></p> <p> </p> <p><strong>BEFORE: HON. MR. JUSTICE HENRY I. KAWESA</strong></p> <p> </p> <p><strong>                                                                  JUDGMENT</strong></p> <p> </p> <p>The appellant was aggrieved by the Judgment of Her Worship <strong>Nantaawo Agnes Shelagh</strong> of Busia Grade I Court dated 12th November 2013.</p> <p> </p> <p>Appellant raised 6 grounds of appeal.</p> <p> </p> <p>In the lower court, the appellant had been sued by the Respondent vide Busia Civil Suit 33 of 2011.</p> <p> </p> <p>According to the plaint under paragraph 3 and 4 thereof, the Respondent had sued defendant/appellant for harvesting one acre of his maize worth 1,000,000 (one million) Uganda shillings and sorghum.  Paragraph 4 states that the plaintiff derives customary inheritance from the land of his late father <strong>Adyeri </strong>distinct from that of the plaintiff herein referred to as disputed land.</p> <p> </p> <p>In paragraph5, he stated that there is in between the land of the late <strong>Ibulaimu Ogwangi</strong> the father of the plaintiff and land of the late <strong>Adyeri</strong> father of the defendant, there was land of the late Nathan the father of <strong>Yokana</strong> hence the plaintiff and defendant do not share a common land boundary at the disputed land.</p> <p> </p> <p>In the written statement of defence, the defendant denied all the above and averred in paragraph 4 that plaintiff is not the heir of the late <strong>Ibrahim Ojwang</strong>.  In paragraph 5 he stated that the land in between that of the father of the plaintiff and that of the defendant belonged to <strong>Onyango Nikola</strong> who gave it to <strong>Oguttu Johnson Ogweyo</strong> in 2005.</p> <p> </p> <p>The duty of a first appellate court was stated in the case of <strong><em>PANDYA v. R (1957) EA 336</em></strong>.</p> <p>The court has a duty to re-evaluate the evidence and reach its own conclusions, bearing in mind the fact that it did not have a chance to examine and observe the witnesses.</p> <p> </p> <p>I have carefully gone through the lower court record, re-evaluated the evidence and analyzed submissions by counsel.</p> <p>I now determine the grounds of appeal in the order they were presented as here below:</p> <p> </p> <p>Grounds 1, 3, 4, 5, and 6 were argued together and ground 2 separately.</p> <p> </p> <p><strong>Ground 2 Res Judicata</strong></p> <p>The appellant faults the learned trial Magistrate for disregarding the appellant’s plea of <em>res judicata</em>.</p> <p>From the record of proceedings I find that both plaintiff and defendant relied on the outcome of civil case CV.25/65.  Plaintiff tendered its judgment and it was received in court as PIDI, while defendant had the same judgment admitted as D.Exh.I.</p> <p> </p> <p>From the proceedings at paper I <strong>PW.I Oguttu Emmanuel</strong> testified that the land he was disputing for was the same land decided in 1966 by court and <strong>Nicholas Onyango </strong>was the successful party.  He confirmed that there is a relationship between the parties in 1965 and to the defendant. (See last paragraph Page 2).</p> <p>He tendered in the copy of the said judgment.</p> <p> </p> <p><strong>PW.2 Christian Bwire</strong> confirmed the litigation in court between <strong>Nicholas Onyango </strong>and<strong> Ojwang Ibrahim</strong>.</p> <p> </p> <p><strong>PW.3 Egesa Alex</strong> confirmed that there was a matter between <strong>Nicholas Onyango </strong>and <strong>Ojwang Ibrahim</strong> and a Magistrate planted boundary marks between the parties.</p> <p>The defendant <strong>Ogweyo Yofisa</strong> also alluded to the 1965 case between <strong>Nicholas Onyango </strong>and <strong>Ojwang Okumu</strong> and tendered a judgment received as  D.Ex.1 by court.</p> <p> </p> <p><strong>DW.2 Fransico Okumu</strong> also traced the earlier dispute before court, confirming that <strong>Onyango</strong> won.</p> <p> </p> <p><strong>DW.3 John Okumu</strong> confirmed that <strong>Nicholas Onyango</strong> was defendant’s guardian.  He confirmed that there had been a dispute which the Magistrate settled between <strong>Onyango</strong> and plaintiff’s father.</p> <p><strong>DW.4 Mangeni Nekesa</strong> also confirmed that <strong>Onyango </strong>and<strong> Ojwang</strong> once had a dispute over this land.  Plaintiff’s father lost and <strong>Onyango Nicholas</strong> was successful.  She said that the defendant was rightfully on the land because it was left to him by his father.  It was therefore the defence raised by the defendant that he was on the land not as a trespasser, but it was plaintiff who was a trespasser.  His argument by evidence was to the effect that <strong>Onyango</strong> had left the land to him.  Plaintiff’s father had lost the case and the matter having been determined already, it was <em>res judicata</em> and plaintiff had no <em>locus</em> to reinstate it.</p> <p> </p> <p>This argument was not well addressed in rebuttal by respondent who was not represented.  The arguments raised are not comprehensible and were an attempt to lead evidence in submissions, which is unacceptable.</p> <p> </p> <p>The law provides under Section 7 of the Civil Procedure Act Cap.71 that:</p> <p>  “<em>No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised and has been heard and finally decided by that court</em>.”</p> <p> </p> <p>Counsel quoted decided cases of <strong><em>Mwanje Enoc v. Nakamate Deborah Mwanje Misc. App. 66 of 2013</em></strong> arising out of <strong><em>DV. 64/2012</em></strong> but no citation.</p> <p><strong><em>Abasolom Batunya v. Sentalo Moses  Anor. Civ. Rev. 7/2009</em></strong> (No citation).  I must point out that though principles enunciated by the cases cited though right, the practice by Counsel of quoting cases without citations, and not providing the copies of such Authorities  quoted is unbecoming and must be avoided.</p> <p> </p> <p>The principle is that for a case to be <em>res judicata</em> the matters in issue ought to have been finally decided upon by a competent court.</p> <p> </p> <p>From evidence on record it is a fact that both plaintiff and defendant sought reliance on the outcomes of CV.25/65 between <strong>Nicholas Onyango </strong>and <strong>Ojwang Ibrahim</strong>.  This case was finally determined and boundary marks were laid by a Magistrate according to the evidence.</p> <p> </p> <p>From the evidence plaintiff claimed that he derived title from his father <strong>Ibrahim Ojwang</strong> (on same piece of land) which <strong>Ibrahim</strong> contested with <strong>Onyango</strong> and lost the case).  On the other hand Appellant/Defendant also claimed interest in this same piece of land tracing his right of ownership to <strong>Nicholas Onyango</strong> who was his guardian, and had won the case against <strong>Ibrahim</strong> (Respondent/Plaintiff’s father).</p> <p> </p> <p>Technically speaking, the Plaintiff/Respondent went to court without <em>locus standi</em>.  He reintroduced in court a cause of action which was already litigated upon by his father against defendant’s  guardian and it had been finally settled by court.  The matter was <em>res judicata</em> and could not be reopened by plaintiff.</p> <p> </p> <p>I agree with appellant’s counsel therefore that following the law of evidence, “he who asserts must prove.”  The plaintiff failed to prove his case and it was clearly shown by the defendant that his suit was <em>res judicata</em>. </p> <p>This ground therefore succeeds.</p> <p><strong>Grounds 1, 3, 4, 5, and 6:</strong></p> <p>These grounds allude to the learned trial Magistrate’s failure to evaluate the evidence.</p> <p> </p> <p>I have re-evaluated the evidence.  From the evidence on record it was clear that the land belonged to late <strong>Nicholas Onyango</strong>.  This land had been subjected to a litigation in 1965 between plaintiff’s father <strong>Ibrahim Ojwang</strong> who lost to <strong>Nicholas Onyango</strong>.  The boundaries and neighbours were well articulated by witnesses for defendant.  Having found that under ground 1 Plaintiff/Respondent had no locus to the suit land, it follows that Defendant was able to establish locus.</p> <p> </p> <p>I do not agree with the learned trial Magistrate’s finding of fact that defendant failed to establish ownership of the land and was hence also a land grabber.</p> <p> </p> <p>I find evidence of DW.1, DW.2, DW.3 and DW.4, consistent and reliable.  The evidence shows that defendant as a beneficiary from <strong>Nicholas Onyango</strong> his guardian.  The learned trial Magistrate referred to contradictions between the defendant and his witnesses regarding how he acquired the land, and his action on locus of failing to locate his father’s grave as evidence of intent to mislead court.</p> <p> </p> <p>I am aware that minor inconsistencies in evidence are always excusable for as long as they do not affect the root of the matter.  I find explanations given in court and at locus, as to how defendant came into possessing the land cogent, truthful and consistent.</p> <p> </p> <p>I find that the defendant having been in possession of the land at time of the suit he cannot be held a trespasser.  He had a good equitable interest in the land by virtue of the late <strong>Onyango</strong>’s title.  On a balance of probability I find that the appellant led sufficient evidence to establish ownership. </p> <p> </p> <p>The above grounds are therefore proved and I hold that the learned trial Magistrate did not evaluate the evidence properly thereby reaching a wrong conclusion.  These grounds are upheld.</p> <p> </p> <p>In the result therefore, this appeal succeeds on all grounds.</p> <p> </p> <p>The judgment and orders of the lower court are hereby set aside and replaced with a finding for the appellants with costs here and below.</p> <p> </p> <p>I so find.</p> <p> </p> <p><strong>Henry I. Kawesa</strong></p> <p><strong>JUDGE</strong></p> <p><strong>21.11.2016</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-9baddbfdb8dad9ce0605d3f704cb5922"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-land-division/2016/79/hc-land-division-2016-79.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Wed, 17 May 2017 13:49:01 +0000 Eunice Logose 27406 at https://old.ulii.org Kamuhangire Miisi v Kashumba Gerald (Civil Appeal No. DR. MFP 8/90) ((Civil Appeal No. DR. MFP 8/90)) [1991] UGHC 11 (31 July 1991); https://old.ulii.org/ug/judgment/high-court/1991/11 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/principles-5" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Principles</a></li><li class="field-item even"><a href="/tags/res-judicata-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Res Judicata</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong><u>THE REPUBLIC OF UGANDA</u></strong><br /> <strong>IN THE HIGH COURT OF UGANDA HOLDEN AT FORT PORTAL<br /> CIVIL APPEAL NO. DR. MFP 8/90<br /> (Original Civil Appeal No. 9/89 of Kabale Court)</strong></p> <p><strong>KAMUHANGIRE MIISI:::::::::::::::::::::</strong><strong>:::::::::::::::::</strong><strong>::::::::::::::::APPELLANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>KASHUMBA GERALD::::::::::::::</strong><strong>:::::::::::::::::</strong><strong>::::::::::::::::::::::::: RESP0NDENT<br /> BEFORE: </strong><strong><u>THE HONOURABLE MR. JUSTICE I. MUKANZA&nbsp;</u></strong></p> <p><strong>JUDGMENT</strong></p> <div>This is an appeal by David Kamuhangire hereinafter referred to as the appellant against the ruling of the learned Chief Magistrate sitting at Kabale dated 24th January, 1990 whereby the learned Chief Magistrate upheld a preliminary point of law raised by the learned counsel representing Gerald Kashumba hereinafter referred to as the respondent in that the subject matter of the appeal was the same subject matter that was decided in Civil Suit No.7/86 of Kagunga court before Magistrate Grade I Mr. Akiiki Kiiza.<br /> The background of this case simply is a land dispute. It dates as far back as 1985 before the Resistance council system came into<br /> operation. The appellant is stated to have filed his complaint before the Adhoc Committee of the Resistance council and the latter found in his favour. As if that was enough he filed a case against the respondent under the RC system RCI. On 7<sup>th</sup> June, 1989 and judgment was delivered in his favour. He was allowed to use the disputed land. The respondent not being satisfied with the decision complained before the RC2 court. He lost the case. The court found for the appellant who was allowed to use the land in dispute.<br /> The respondent not being satisfied with the decisions of the courts of R.C.I and R.C. II complained to the RC III court. The latter court after hearing evidence from the parties and their witnesses found that the disputed land was the property of the respondent. In all those courts the appellant all along maintained that he bought the land in question from one Bataringaya who bought the same land from the father of the respondent also called <u>Gashumba. </u><br /> However in Civil Suit No. 7/86 the respondent sued one Charles Bataringaya for the same piece of land before a Magistrate Grade I court sitting at Kagunga and judgment was delivered in his favour.<br /> Be that as it may the appellant not being satisfied with the decision of the RC III court appealed to the Chief Magistrate court. He listed about nine grounds of appeal. The learned counsel appearing for the appellant arrived in court a bit late when the learned counsel for the respondent had already submitted on his preliminary point of objection to the appeal which as I stated earlier on was upheld. He was advised by the court if he so wished to file in a written submission in reply. That advice was apparently not adopted by the appellant.<br /> The appellant not being satisfied with the decision of the Chief Magistrate applied for leave from the Chief Magistrate’s court to appeal to the High Court under S. 232 (1) (c) of the Magistrate’s courts Act 1970. Leave was readily granted by the Chief Magistrate (not the one who presided over the appeal).<br /> The appeal is grounded on three reasons:—<br /> 1. That the learned Chief Magistrate erred in law by entertaining the application of counsel for the respondent when no notice of application has been given.<br /> 2. That the learned Chief Magistrate erred in dismissing the appellants appeal relying on wrong documents and the doctrine of resjudicate could not apply since the appellant had acquired his own independent rights in the land under dispute.<br /> <em>3. </em>That under the circumstances the ruling of the learned Chief Magistrate occassioned a miscarriage of justice.<br /> At the commencement of the hearing of this appeal the first ground of appeal was abandoned by the appellants counsel and the court proceeded to hear the rest of the grounds of appeal.<br /> The learned counsel appearing for the appellant submitted that the underlying principle of resjudicata is that there must be an end to litigation. While it is true the appellant bought the land from Bataringaya who was the defendant in Civil Suit No. <em>7 </em>of 1986.<br /> The appellant bought land in 1982 and took up possession and developed his rights independent of the seller. So that when Civil Suit No. 7/1986 was filed in Rukungiri the appellant had already his land independent and separate from those of Bataringaya. So when the respondent filed C.S. No. 7/1986 in Rukungiri court he well knew that the appellant was on that land and that was exemplified by the proceedings of the RC I, II and RC III courts. And when cross examined those courts by the appellant accepted that he the respondent had appeared with the appellant. His explanation in R.C. Courts was that he filed a Civil Suit No. 7/1986 as a sort of an appeal against the ruling of<strong><em> </em></strong>the NRM committee of 1985 so after the respondent had appeared with the appellant before the NRM tribunal and lost he could not have clandestinely filed a suit against the person who was not in possession of the disputed land.<br /> The learned coinee1 continued that he was very suspicious how Civil Suit No. 7/86 was decided because Bataringaya having appeared almost throughout the trial decided to abandon the case and an exparte judgment was entered for the respondent. His fear was that the court was deceived by parading that there was one Bataringaya when he was not there. His suspicion are raised when the respondent had instead of joining the appellant with whom he had appeared in the PC courts and then joined some one who no longer had interest in the land. The issues therefore in Civil Suit No.7/86 were not substantially and directly in position to dispose of the issue in Civil Appeal No. 9 of 1989.<br /> On the third ground of appeal the learned counsel submitted that the ruling of the Chief Magistrate caused a miscarriage of justice because he was calling upon the appellant to trace Bataringaya who was alleged by the respondent and the PC’s that they had no trace of him.<br /> It could only have been fair arid just to allow the party in occupation and who had been in occupation before the filing of Civil Suits No.67/86 to exhaust his legal venues against the respondent. He prayed that the appeal be allowed and the matter be remitted back to Kabale to try the appeal emanating from the RC III court.<br /> The learned counsel representing the respondent submitted that the appeal was rightly held to contain issues caught by the resjudicate under S. 7 of the Civil Procedure Act. C.S.<em> </em>No. 7 of 1986 is a former suit when compared to the RC III Chairman decision. The Chief Magistrate court sent two letters to R.C. III court advising them not to entertain the suit one of the letter was dated 8th August 1988 and the other is dated 5th September 1988 as well. A court was to be competent if established by law. The RC’s courts are creatures of Statute No. 1 of 1988. That the court mentioned by his learned friend as having entertained the matter in 1985 was not a competent court. It will be unsafe to put on record of this court that there was such committee when the law at that time was not recognizing such committee at all. Bataringaya was not a fictitious person introduced to defeat the cause of justice. He was mentioned by the appellant in the memorandum of appeal before the Chief Magistrate as a person who sold him land. A person claiming under another person as explained in section <em>7 </em>of the CPA Cap <em>65 </em>includes a person who claims to have purchased from the person who has had litigation with the other party. In the circumstances Bataringaya was party and a purchaser from Bataringaya was claiming to have had that land through Bataringaya. The matter was resjudicata when looked at from all angles. According to the 2 letters the RC courts had no authority to re-open a case which had already been decided upon by a Magistrate’s court. In proceeding to hear the case the RC were contravening the Statute which had created it. The learned trial Magistrate looked at grounds 3 &amp; 6 of the memorandum of appeal in his letter to the RC‘s. In ground <em>3 </em>the appellant admitted that the respondent had used the land for 2 years while his father was still alive.<br /> In ground 6 the appellant explained that the father of the respondent testified for his son. The Chief Magistrate looked at ground <em>7 </em>in which the appellant stated that Bataringaya sold the land to him, and later sold the same to David Gashumba. The Chief Magistrate found that even if the appeal had been prosecuted it would have been useless because the grounds only showed confusion. The RC.III court informed the appellant of the existence of Charles Bataringaya whom he claimed sold him land and requested him to bring Bataringaya but failed. So whether one considered in whole or resjudicate alone there was no merit in the appeal. He prayed that the appeal be dismissed. After the submission by the learned counsel representing the parties<br /> I now turn to consider the appeal. First that the learned Chief Magistrate erred in dismissing the appeal relying on wrong documents and the doctrine of resjudicate, could not apply since the appellant had acquired his own independent rights. Section 7 of the Civil Procedure Act states:-</div> <div><em>“No court shall try any</em><em> suit</em><em> or is</em><em>sue in which </em><em>the matter direc</em><em>tly and substantially in issue </em><em>has been directly and substantially in issue in a former suit between the same parties under whom they or any of them claim, litigating under the same title, in a court competent to try such </em><em>subsequent</em><em> suit or the suit in which such issue</em><em> has been subsequently</em><em> raised, and has been heard and f</em><em>inally decided by such court.”</em></div> <div>In the present appeal the parties are the appellant and the respondent the subject matter is land which was adjudicated upon by the RC III court of the area where the land was situated; but in Civil Suit No.7/86 which was decided by the Grade I Magistrate Rukungiri at Kagunga the parties were the respondent as the plaintiff and one Kyomuhangire was the defendant while the subject matter was the same but the parties were not the same. I agree with the learned counsel for the respondent that when the appellant filed his suit before the RC adhoc committee in 1985 and succeeded the RC system had not come into operation. The RC Committees were the creature of Statute No. 1 of 1988. However the respondent was aware that he was litigating with the appellant who is stated to have bought the land from Kyomuhangire way back in 1982. It was therefore improper when he filed Civil Suit No.7/86 against Bataringaya whom he knew no longer had interest in the subject matter land. I agree with the learned counsel for the appellant that the appellant had acquired his rights in the subject matter land independently of one Kyomuhangire. Therefore when the respondent filed the said Civil Suit 7/86 against Kyomuhangire he ought to have joined the appellant as a party in order to dispose of the dispute once and for all.</div> <div>As already explained above the dispute went through all the three systems of the RC courts from RC I to RC III. At the court of RC III the appellant lost the case and he appealed to the Chief Magistrate court. The learned counsel for the respondent submitted that the RC courts were directed not to entertain the case because the same had been adjudicated upon by court with competent jurisdiction. The learned counsel then purportedly showed to this court two letters or in way tendered in courts two letters dated <em>5/9/89 </em>and 18th August 1988 stopping the <em>R</em><em>C’S </em>not entertain the matter because the same had already been litigated upon before. The two letters were never referred to at the trial in R.C. courts and they were not written by the Chief Magistrate but a certain grade I Magistrate Beyanga so it is not true that the learned Chief Magistrate wrote to the RC’s stopping them from entertaining the matter. What was certain from records was that the Chief Magistrate wrote a letter setting aside the exparte judgment of the RC III court and ordered for a retrial. Moreover the two letters referred to me had no evidential value because I was not receiving fresh evidence when I entertained the appeal. The RC courts therefore had the requisite jurisdiction to entertain the matter. Civil Suit 7/86 was therefore not a resjudicate in that though the subject matter in the case was the same as was in the instant appeal. The parties were not the same. In Civil Suit No. 7/86 the parties were the respondent as the plaintiff and one Kyomuhangire as the defendant. Besides that the appellant had acquired his own interest and rights in the subject matter and as such he was not claiming the said land through Kyomuhangire who had since 1986 disappeared. The learned Chief Magistrate therefore erred when he dismissed the appeal on the pretext that the appeal was resjudicate. This ground of appeal therefore succeeds.<br /> The second ground of appeal was that the decision of the Chief Magistrate caused a miscarriage of justice. It was true that the learned counsel representing the respondent arrived late when the preliminary point of law had just been argued. Looking at the nature of the claim land case of which I take judicial notice that it is a sensitive matter in this country it would have been fair to allow the appellant to exhaust all his legal venues on the matter since he was the party in occupation of the land since 1982. And it was also not proper for the learned <em>Chief </em>Magistrate to have advised the appellant to trace the said Bataringaya for refund of the money he paid for the land because the said Bataringaya has since 1986 disappeared. There was no trace of him. This ground of appeal also succeeds.<br /> In the end I allow this appeal with costs and I order that the case file be remitted back to the Chief Magistrate Kabale with directions that he proceeds to hear the appeal from the RC III court on its merits and so I order.</div> <p>&nbsp;</p> <p><strong>I. MUKANZA</strong><br /> <strong><u>J UDGE </u></strong><br /> <strong>31/7/91</strong><br /> &nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-7038729fb907b86d7a9394c39d13d93e"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1991/11/high-court-1991-11.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:53:59 +0000 Anonymous 16604 at https://old.ulii.org General Parts (U) Ltd and Ors v Non-Performing Assets Recovery Trust (Civil Appeal No. 9 of 2005) [2006] UGSC 3 (14 March 2006); https://old.ulii.org/ug/judgment/supreme-court/2006/3 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/principles-5" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Principles</a></li><li class="field-item even"><a href="/tags/res-judicata-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Res Judicata</a></li><li class="field-item odd"><a href="/tags/property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Property Law</a></li><li class="field-item even"><a href="/tags/mortgage-loans-and-bonds" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Mortgage, loans and bonds</a></li><li class="field-item odd"><a href="/tags/mortgage" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Mortgage</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>IN THE SUPREME COURT OF UGANDA</strong></p> <p><strong>AT MENGO</strong></p> <p><strong>Coram: Odoki C.J., Tsekooko, Karokora, Mulenga, and Katurebe JJ.S.C.</strong></p> <p>&nbsp;</p> <p><strong>CIVIL APPEAL NO.9 OF 2005</strong></p> <p>&nbsp;</p> <h1>BETWEEN</h1> <p>&nbsp;</p> <ol> <li> <p><strong>GENERAL PARTS (U) LTD.</strong></p> </li> <li> <p><strong>HARUNA SEMAKULA :::::::::::::::::::::::::::::::::::APPELLANTS</strong></p> </li> </ol> <p>&nbsp;</p> <p><strong>AND</strong></p> <p>&nbsp;</p> <h2>NON-PERFORMING ASSETS RECOVERY TRUST:::::::RESPONDENT</h2> <p><strong><em>[Appeal from the judgment of the Court of Appeal (Okello, Mpagi-Bahigeine &amp; Byamugisha JJ.A) in Civil Appeal No.49/04 dated 19<sup>th</sup> August 2005]</em></strong></p> <p>&nbsp;</p> <p><u><strong>JUDGMENT OF MULENGA JSC.</strong></u></p> <p>&nbsp;</p> <p>This appeal originates from a suit instituted in the Non-Performing Assets Recovery Tribunal, hereinafter referred to as “the Tribunal”, by the above-named respondent. The respondent sued as an assignee of a non performing asset in form of a debt of shs.2, 288,821,473/- that the 1<sup>st</sup> appellant above-named owed to Uganda Commercial Bank, hereinafter referred to as</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-0bc30e4bcce3533d081bc325af086d8d"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2006/3/supreme-court-2006-3.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:33:42 +0000 Anonymous 15429 at https://old.ulii.org