Mukyemalila and Thadeo v. Luilanga Civ. App. 19-M-71; 11/12/71; Kisanga Ag. J.

Mukyemalila and Thadeo v. Luilanga Civ. App. 19-M-71; 11/12/71; Kisanga Ag. J.

The respondent inherited the land in dispute from his deceased father. From 1954 he allowed the first appellant to use it to grow seasonal crops on it. The latter eventually sold the land to the second appellant. The respondent sued for the recovery of his land. The primary court found against the respondent on the ground that the land was no longer his because he had disposed of it in favour of the taking additional evidence, found that the disposition in 1954 was not an outright gift to the appellant but a limited one in the sense that the appellant was only allowed to use the land for growing seasonal crops thereon. He, therefore, reversed the decision and order that the respondent be re-possessed of the land. In the high court the appellants argued that the respondent’s claim to the land was time barred under the Magistrates’ Courts (Limitation of Proceedings under Customary Law) Rules, 1964 and that the magistrate erred in recording additional evidence on the appeal.

            Held: (1) “Paragraph 2 of the said Rules provides that; - No proceedings for the enforcement of a claim under customary law of a nature shown in the second column of the Schedule here to shall be instituted after the expiration of the corresponding period shown in the third column of that Schedule, such period being deemed to commence on the day when the right to bring such proceedings first accrued or on the day, when these Rules come into operation, which ever is the later. And item 6 of the relevant Schedule provides. ‘Proceedings to recover possession of land ….. 12 years’. It seems clear from the evidence of the respondent that he commenced the proceedings only because the appellant Mukyemalila sold the suit land to the second appellant Thadeo. In other words, so long as the appellant Mukyemalila was occupying the land with the permission of the respondent, the dispute did not arise. The limitation period therefore cannot be said to have started running from 1954 when respondent allowed the appellant Mukyemalila to occupy the land. It stated to run when Mukyemalila sold the land to the second appellant Thadeo.” (2) “It is apparent from the evidence of the respondent that he brought the proceedings of the land in favour of Thadeo. In those circumstances because the period between the institution of the proceedings and the time the action accrued or the time the Limitation

 

(1972) H.C.D.

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Rules were made is less than 12 years.” (3)”The District Court magistrate stated in his judgment that he recorded additional evidence from [the] witness in the exercise of his powers under section 17(a) of the Magistrates’ Courts Act. That section provides: - “17. In the exercise of its appellate jurisdiction, a district court shall have power – to direct the primary court to take additional evidence and to certify the same to the district court or, for reasons to be recorded in writing, itself hear additional evidence”. Just before receiving this additional evidence the learned district court magistrate stated: - “I feel to record the additional evidence of ex headman Miti”. It is clear that there was not sufficient compliance with the provisions of the section quoted above because the district court magistrate recorded no reasons for taking this course. However, looking at the record it seems that there was good ground for taking such additional evidence because it gives some idea of the back ground history to the suit land while the evidence of the parties and their witnesses related mainly to contemporary matters. Had the learned District Magistrate followed the correct procedure there fore, I am satisfied that he would have recorded a sufficient reason for taking additional evidence from this witness.” (4) Appeal dismissed.