THE REPUBLIC OF UGANDA

IN THE  HIGH COURT OF UGANDA

AT MBALE

HCT- CV –CA-00100 OF 2011

FLORENCE LOVE MUSIWA ……………………….                                                                                                                                                           APPELLANT

VERSUS

1. YUSUF LABU
2. PETER LABU ……………………..………….                                                                                                                                                             RESPONDENTS

BEFORE:  THE HONOURABLE  JUSTICE  STEPHEN MUSOTA

JUDGMENT

This is an appeal from the judgment and decree of  the Magistrate Grade one Kapchorwa arising out of a suit where the appellant Florence love Musiwa sued the respondents to wit  1. Yusuf Labu , 2. Peter Kagu   jointly and severally for orders of vacant possession of land, a permanent injunction and damages for trespass and other consequential orders.

The 2^nd  defendant filed a counterclaim for the cost of building materials worth   13 million shillings, damages for defamation and costs for the counter claim.

In his judgment, the learned trial Magistrate entered judgment for the  2^nd defendant/2^nd  respondent.  He made no finding against the 1^st defendant/1^st respondent, Yusuf Labu.  The appellant was dissatisfied with the judgment  and decree of the learned trial Magistrate and through M/S Owor  &  Company Advocates raised 7 grounds of appeal to wit that:

1. The learned trial Magistrate as a court of first instance formed an  unbalanced view of the evidence and in the result  reached a decision which was un supported by the evidence as a whole.
2. The decision of the learned Magistrate was riddled with misdirections and  none directions on  both matters of fact and the law
3. The learned trial Magistrate did not address himself to the contradictions and conflicts  “within”  the evidence of the  respondents  and his witnesses.
4. The learned trial magistrate did not address his attention to the fact that an interlocutory  judgment  had been entered against the 1^st defendant (1^st respondent) on 16.09.2010  and that since the 2^nd defendant acquired the said land from the 1^st defendant, this ought to have affected the decision.
5. The learned trial Magistrate erred in law and fact  when he purported to make a finding on who was to pay the costs for the counter claim.
6. The decision complained of appears to have occasioned  a miscarriage of  justice.
7. The learned trial Magistrate as a court of  first instance failed to subject the whole evidence to an exhaustive scrutiny and appraisal the  appellant was entitled to. 

The appellant prayed that:

1. This appeal be allowed
2. The lower court’s decision be set aside
3. A retrial may be ordered before another competent court to judiciously  and  exhaustively appraise  the evidence of the parties.
4. Costs here and below  be provided for.

At the hearing of the appeal  the respondents were represented by M/S Kob  Advocates  & Solicitors.

I allowed  both learned counsel to file written submissions.

As rightly submitted by learned counsel for the respondents, it is the duty of the first appellate court to re-evaluate the evidence on record and draw its own conclusions  having in  mind. The law that the burden of proof in all civil suits is discharged on a balance f probabilities .  It is the duty of the plaintiff to establish its case to that standard.

I have considered the submissions by both learned counsel and related  the same to the lower courts record.  I meticulously  studied the evidence adduced at the trial on both sides and comprehended the judgment by the trial magistrate.

I will go head and decide this appeal generally.

I agreed with the complaints raised by the appellant in  the grounds of appeal and the following are my reasons therefore:

1        The judgment by the learned trial magistrate is glaringly   one sided.  He dwelt  entirely  on analyzing the  evidence by the appellant in isolation of what was testified by the defence.  This affected his conclusions tremendously and made him form an  unbalanced  view of the  evidence.  His conclusion  could not  be supported by the entire evidence

2        As rightly complained by learned counsel for the appellant, the learned trial magistrate did not address himself to the fact that his predecessor had entered an interlocutory judgment against the 1^st respondent on 16.09.2010.  The decision of the trial Magistrate concerns the  2^nd respondent only .  It is difficult to speculate  how his decision would have been affected had he addressed his mind to this fact  that an interlocutory judgment  against the 1^st respondent  is on record and the fact that the  2^nd respondent derived his interest from the 1^st respondent.  By not making a decision regarding the 1^st   respondent  it rendered  the trial incomplete.  Such  lopsided decision occasioned  a miscarriage of justice against the appellant.  The learned trial Magistrate as a court of first instance failed to subject  the whole  of the evidence before him to that exhaustive scrutiny and appraisal which the appellant was entitled to  expect.

Regarding costs in the counterclaim, it appears the complaint by the appellant is   unfounded because the learned trial magistrate struck out the counterclaim with costs.  This implies he awarded costs against the counterclaimant.

Consequently I will uphold the grounds of appeal and order that a retrial be conducted expeditiously before a court of competent jurisdiction.  The costs shall abide the outcome of the retrial. 

I so order.

Stephen Musota

Judge.

  10/12/2013