Richard Rweikiza v. Fransis Stephano. (PC) Civ. Rev. 6-M-69; 31/12/69; Seaton J.
The respondent Fransis filed suit in the Primary Court on behalf of himself and 4 other children of Stephano who died in 1953, against 3 defendants, Severian and the applicants, John and Richard Stephano. It was alleged that Fransis and the 4 other children had received nothing in the distribution of the estate of their deceased father Stephano, b the defendant Severian, the administrator of the estate. The defence denied that Stephano had any children except John and Richard, who were represented by their mother. The Primary Court found that the defendant Severian had failed in his duties and that one shamba had been sold by John to a third party. They also found that Fransis and the other children were all children of Stephano. Richard then swore an affidavit applying to the present curt to declare the proceedings null and void and order a new trial on the ground that his mother was wrongly made a defendant and had no authority to represent him.
Held: (1) Primary Court proceedings were not invalid. (2) “The District Court Magistrate has included in the record the plans of four shambas and the names of 22 people who were present when he visited the site. The notes made at the site are copious and included measurements of the various fields or shambas originally belonging to the deceased Stephano and names of persons to whom they were allocated or distributed. At the end of the notes, the District Magistrate recorded as follows: “All the people who had attended had expressed that Fransisco Stephano was entitled to receive some inheritance i.e. Portion of shamba of Nyaruju, because the one which he had been given had been taken on account of Nyarubanja maters. Kashangaki is also entitled to receive a portion of a shamba of Nyaruju, because the field which he had been given at Nyakitunga had been disposed in order to settle the debts of deceased. The people present at the Baraza (assembly) had expressed In Kiziba they do not recognize any children known as BISISI – (illegitimate children). The children whose mother had not conceived while their supposed father was still alive, ere not entitled to any inheritance of the deceased property. (1) Kyaruzi and (2) Faustine had been born long after the deceased had died in 1953.” It thus appears from the record that the District Court was influenced by the statements of bystanders when he visited the site and that he held some kind of a Baraza” or assembly in order to help him determine the appeal. None of the persons whose statements were made during this Baraza were apparently sworn no were their statements recorded separately and included in the case file. The procedure followed may have some basis in traditional custom but under our present system was irregular and contrary to instruction repeated given by this Court as to the procedure to be followed when a court visits a site in the course of a trial or of an appeal. For these reasons, the proceedings of the District Court must be declared null and void. The decision and order are accordingly set aside and it is ordered that the appeal to that Court be re-heard before another Magistrate.
0 Comments
PLACE YOUR COMMENT HERE
WARNING: DO NOT USE ABUSIVE LANGUAGE BECAUSE IT IS AGAINST THE LAW.
THE COMMENTS OF OUR READERS IS NOT OUR RESPONSIBILITY.