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JUDGMENT:
[1] This is an appeal in a civil suit which has a long history. Because
there have been several appeals I shall ref8r to the appellant as defendant
and the respondent as plaintiff. The plaint was filed in August, 1966,
nearly eleven years ago in the Grade III magistrate's Court at Iyolwa and
the hearing commenced on 13th December, 1966 before that magistrate.
[2] It was a simple land boundary dispute. After hearing the plaintiff and
one witness the hearing was adjourned. Eventually, on 10th March, 1967, it
was continued, but this time before a magistrate grade II who completed the
hearing and gave judgment in favour of the plaintiff on that same day.
[3] The defendant appealed to the Chief Magistrate at Mbale who gave
judgment on 14th August, 1968. He ordered a retrial because the hearing in
the trial court had been in parts before two magistrates of different
grades.
[4] The suit started once again before a different magistrate grade III in
1968 and he gave judgment in favour of the plaintiff on 29th January, 1969.
The defendant appealed to the magistrate grade II at Kisoko who reversed the
trial court decision in favour of the defendant on 16th June, 1969.
[5] The plaintiff appealed to the Chief Magistrate at Mbale who, in his
judgment on 22nd July, 1970, reversed the decision of the first appeal
magistrate grade 11 and restored the decision of the trial Magistrate in
favour of the plaintiff. Now, after this matter has been before six
different magistrates it has come before this court on a third appeal.
[6] At the second trial the plaintiff called six villagers as witnesses
including a chief who supported her claim that the boundary between the land
of the land was marked by a bulungi bwansi path.
[7] The defendant called two witnesses who said that the land was his.
However, he claimed that the two of his sons were living on the disputed
land but they did not come to testify.
[8] The trial magistrate carefully considered all the evidence before him
and visited the land and drew a clear sketch plan of the area. He believed
the plaintiff and her witnesses and he did not accept the evidence of the
defendant who was not supported by the immediate neighbours nor by his sons.
[9] The magistrate grade two on the first appeal appeared to have mis-understood
the evidence and seriously misdirected himself at least twice.
[10] Once was when the appeal magistrate apparently thought that the
plaintiff has said that the defendants son had a shop on his land, whereas
she actually said that it was her husband who said that he had built the
shop. The second misdirection was when the Magistrate held that there was no
evidence that the defendant had instructed his son to build a house on the
disputed land where as there was ample evidence of this. I do not think that
that the first appeal magistrate read the record of the trial with much
understanding.
[11] The chief magistrate, in his long judgment, very carefully reconsidered
all the evidence and he agreed with the conclusions reached by the trial
Magistrate. I can find no signs of miscarriage of justice in the proceedings
and judgment of the trial Magistrate and I agree with the chief Magistrate
and that the trial Magistrate clearly misdirected himself and probably and
probably he misunderstood the evidence.
[12] Accordingly this appeal is dismissed with costs and the judgment of the
trial magistrate in favour of the plaintiff/ respondent is to stand. |
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