THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA

(COMMERCIAL DIVISION)
CIVIL SUIT No. 0370 OF 2017
5 1. CENTRE FOR LAW AND PEACE UGANDA }
2. RATO ENTERPRISES LIMITED } …………… PLAINTIFFS
3. GEORGE OKOT }
4. RICHARD OBEDI }
VERSUS
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1. BANK OF UGANDA } …………………………………… DEFENDANTS
2. DFCU BANK LIMITED }

Before: Hon Justice Stephen Mubiru.

15 RULING
a. Background.

The 1st plaintiff, a civil society organisations, together with the rest of the plaintiffs, who were
customers of the defunct Crane Bank Limited, sued the defendant jointly and severally for breach
20 of contracts of banking, refund of fees and charges, an order of cancellation of a directive of the
1st defendant that caused the transfer of the 2nd to 4th defendant’s bank accounts from Crane Bank
Limited to DFCU Bank without their consent, a declaration that by that directive the 1st defendant
violated the rights of the 2nd to 4th plaintiffs and a multitude of other Crane Bank Limited
customers, and costs. The 2nd to 4th plaintiffs contend that the transfer of their accounts from Crane
25 Bank Limited to DFCU Bank involved disclosure to the latter without their consent, of confidential
private and business information to the latter. It is contended further that the 1st defendant as well
failed it its duty when for several years it permitted Crane Bank Limited to continue undertaking
financial institutions business below the minimum required standard, thereby exposing depositors’
savings to the risk of loss. The 2nd defendant is as well faulted for having unlawfully proceeded to
30 deduct a sum of money it claimed to be due from the 2nd plaintiff under credit arrangement with
Crane Bank Limited, from a cheque banked with it by the 2nd plaintiff. In all this, the 1st plaintiff
is joined to the suit as a public spirited organisation, seeking to enforce the rights of a “class of
persons who are depositors in financial institutions and commercial banks in Uganda affected by
Bank of Uganda.”

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 b. The objections.

The defendants object to the propriety of the suit on a number of grounds, i.e. being a claim
founded on breach of banking contracts, the suit is not properly filed under article 50 of The
5 Constitution of the Republic of Uganda, 1995; the suit is a disguised representative suit yet the
plaintiffs did not seek a representative order; the plaintiffs have no locus standi for seeking the
reliefs sought; the plaint does not disclose a cause of action against the 1st defendant; the plaint is
bad for misjoinder of parties and causes of action.

10c. Submissions of counsel for the 1st defendant.

Counsel for the 1st defendant submitted that Section 124 of The Financial Institutions Act, grants
the 1st defendant qualified immunity yet the plaintiffs have not pleaded malafides. It is a fatal
defect which cannot be cured by amendment. Page 73 of the list of authorities is on misjoinder.
15 No similar questions of law or fact arise.

d. Submissions of counsel for the 2nd defendant.

Counsel for the 2nd defendant submitted that paragraph 5 of the plaint demonstrates that the claim
20 it is not in public interest but for private gain. One needs to plead violations yet none have been
pleaded. Para 5 and 8 of the plaint seek orders for the benefit of the plaintiffs. The claim is based
on breach of contract. They are using a provision in public law for the enforcement of private
rights. It is a disguised representative action with no representative order. Para 4 of the plaint
demonstrates that. Misjoinder of parties and cause of action; for constitutional violation which
25 arises under public law cannot be joined in action in private law. The Kabaka of Buganda case.

e. Submissions of counsel for the plaintiffs.

Counsel for the plaintiffs submitted that there are cross-cutting issues. There is public interest
30 involved. The facts are so intertwined. This is public interest litigation.

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 f. The issues arising;

A preliminary objection is a legal objection to the opponent’s pleading. It complains of a defect

inherent in the pleading, or which arises by clear implication out of the pleadings, and which, if
5 argued as a preliminary point, may dispose of the suit. It asserts that the pleading lacks the
averments necessary to sustain a cause of action or a defence, as the case may be, or for some other
reason is vague and / or embarrassing. It raises a pure point of law which is usually on the
assumption that all the facts pleaded by the other side are correct. It is thus based on a commonly
accepted set of facts as pleaded by both parties. It cannot be raised if any fact has to be ascertained
10 or if what is sought is the exercise of judicial discretion.

Some of the more common objections are; - that the court has no jurisdiction over the person of
the defendant; that the court has no jurisdiction over the subject matter of the suit; that the plaintiff
has not legal capacity to sue; that there is another suit pending between the same parties for the
15 same cause; that the plaintiff does not state facts sufficient to constitute a cause of action; res
judicata; that the suit is barred by limitation; that the defence is insufficient in law, a sham or
frivolous.; that a pleading is prolix, vexatious or embarrassing; that there is a misjoinder of parties
or cause of action. According to Order 6 rule 28 of The Civil Procedure Rules, a point of law that
is pleaded which when so raised is capable of disposing of the suit, may then by consent of the
20 parties, or by order of the court on the application of either party, be set down for hearing and
disposed of at any time before the hearing.

According to Order 15 rule 3 of The Civil Procedure Rules, the court may frame issues from all or
any of the following materials; - (a) allegations made on oath by the parties, or by any persons
25 present on their behalf, or made by the advocates of the parties; (b) allegations made in the
pleadings or in answers to interrogatories delivered in the suit; and (c) the contents of documents
produced by either party. It is in that regard that the following are deemed to be the issues arising
as preliminary points of law in this suit;
1. Whether the suit is properly filed under article 50 of The Constitution of the Republic of
30 Uganda, 1995;

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 2. Whether the proceedings are a disguised representative suit and thus incompetent for lack
of a representative order;
3. Whether the plaintiffs have locus standi for seeking the reliefs sought;
4. Whether the plaint discloses a cause of action against the 1st defendant;
5 5. Whether the plaint is bad for misjoinder of parties and causes of action.

g. The decision;

The Commercial Court was established in 1996 by The Constitutional Commercial Court
10 (practice) Directions 1996 as a division of the High Court of Uganda. According to regulation 4
of that instrument, the business of the Commercial Court comprises “all actions arising out of or
connected with any relationship of a Commercial or business nature, whether contractual or not,”
including, but not be limited to; (i) the supply or exchange of goods and services; (ii) banking,
negotiable instruments, international credit and similar financial services; (iii) insurance,
15 reinsurance; (iv) the operation of stock and foreign exchange markets; (v) the carriage of goods(by
water, land and air); and (vi) foreign judgments and commercial arbitration questions. The
Division therefore deals with disputes within the realm of Commercial law or related to business
dealings.

20 The key phrase in regulation 4 of The Constitutional Commercial Court (practice) Directions 1996
is “any relationship of a Commercial or business nature.” Commercial law is the body of law that
applies to the rights, relations, and conduct of persons and business engaged in commerce,
merchandising, trade, and sales, while business is the activity of making one's living or making
money by producing or buying and selling products (such as goods and services). This Division
25 therefore has jurisdiction over disputes arising in “relationships” involving commerce,
merchandising, trade, or buying and selling products (such as goods and services). A relationship
being a connection, association, or involvement, the implication is that the scope of disputes that
fall under the docket of this Division are of a transactional nature; contractual relations or relations
of a commercial character, i.e. interaction between two or more parties relating to business or
30 commerce, characterised by mutual influence and exchange or a mutuality of obligations.

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 Despite variations of detail, all commercial transactions have one thing in common: they serve to
transmit economic values such as materials, products, and services from those who want to
exchange them for another value, usually money, to those who need them and are willing to pay a
counter value. It is the purpose of the relevant legal rules to regulate this exchange of values, to
5 spell out the rights and obligations of each party, and to offer remedies if one of the parties breaches
its obligations or cannot perform them for some reason. Disputes of a commercial character may
give rise to issues in public or private law, but within a transactional setting. Everything which
relates to the legal requirements, modifications, exemptions, interpretation and extinction of rights
and to the capacity of the interacting parties in a transactional setting will thus fall under the docket
10 of this Division.

Before exercising jurisdiction, this division must be satisfied that the subject matter of the suit falls
within the provisions of regulation 4 of The Constitutional Commercial Court (practice)
Directions 1996. The subject matter of a suit is the right or rights actually put in issue by the
15 pleadings of the parties. The applicant in the instant application seeks to impeach actions of the
respondents taken in the course of a procurement process, as contravening provisions of the
Constitution. The action is brought in public interest under article 50 of The Constitution of the
Republic of Uganda, 1995. The applicant does not plead being in a transactional relationship with
any of the respondents. His intention as a public spirited individual is, inter alia, to ensure that the
20 implementation of [the procurements] is done in accordance with the Constitution and the national
content provisions of the relevant petroleum sector laws,” and for the taking of “a proper legal
audit of the procurement processes…”

In this suit, the plaintiffs seek to enforce rights arising out of existing relations or interactions of
25 persons engaged in commerce, business merchandising, trade, and sales, of goods and services
alongside enforcement of statutory duties of the 1st defendant. The thrust of the suit seeks to ensure
that the 1st defendant as regulator is held accountable in the execution of its mandate and the other
defendant, for its conduct as a commercial bank. The arguments of counsel for the defendants all
relate to alleged defects inherent in the plaint, or which arise by clear implication out of the plaint.
30 They are all based on a commonly accepted set of facts as pleaded by both parties, and do not
require any additional facts to be ascertained. What is sought is not the exercise of judicial

5
 discretion and it is the court’s considered view that these are matters which if argued as preliminary
points, may dispose of the suit. The first and third issues will be considered concurrently.

First issue; whether the suit is properly filed under article 50 of The Constitution of the
5 Republic of Uganda, 1995.
Third issue; whether the plaintiffs have locus standi for seeking the reliefs sought.

Courts have now acknowledged that where there has been violation of constitutional or legal rights
of persons who, by reason of their socially or economically disadvantaged position, are unable to
10 approach the court for judicial redress, a member of the public could move the court for
enforcement of such rights of such persons. Members of the public are enabled, in appropriate
cases to come forward to protect the rights of a person or persons belonging to a determinate class
who, by reason of poverty, helplessness or disability or socially or economically disadvantaged
position, are unable to approach the court for relief. This principle has been extended to cases
15 where no specific regal injury is caused to a person or to a determinate class or group of persons
by the act or omission of State or public authority and injury is caused only to public interest.
Where there is a public wrong of public injury by an act or omission by the State or a public
authority which is contrary to the Constitution or to any law, any member of the public having
sufficient interest can maintain an action to or redress such public wrong or public, injury.
20
Courts now recognise that they exist not merely to vindicate individual rights but also to vindicate
public rights and therefore permit members of the public to agitate such rights. Any member of
the public having sufficient interest can maintain a suit for judicial redress of public injury arising
from breach of public duty or violation of some provision of the Constitution or the law and seek
25 enforcement of such public duty and observance of such constitutional or legal provision. Of
course, it must be ensured that the person who comes forward is acting bona fide and not for
personal gain or private profit or out of political motivation or other oblique consideration (see
S.P. Gupta v. President of India and others, AIR 1982 SC 149; People’s Union For Democratic
Rights and others v. Union Of India and others (1982) 3 SCC 235; and State Of Tamil Nadu v.
30 Union Of India, AIR 1983 1 SC 130).

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 The primary objective of article 50 of The Constitution of Uganda, 1995 is to protect the individual
against arbitrary interference by public authorities. The rights envisaged by that article are
antecedent rights “in rem” which, irrespective of any wrong having been committed, are available
for the benefit of the person of inherence against a person of incidence so unlimited so as to
5 comprise the whole world. Examples are the right to personal freedom, reputation, possession and
ownership. Article 50 is for the enforcement of rights and freedoms as defined under its title. It is
designed for suits challenging commissions or omissions as being inconsistent with or in
contravention of the rights specified therein.

10 Article 50 of The Constitution of Uganda, 1995 is thus construed as a public law tool that invokes
a public-spirited citizenship, and the notion of the civic virtue of pursuit of the common good.
Suits under article 50 of The Constitution of Uganda thus may be filed for the protection of
individuals’ private rights as a factor in the pursuit of the public good, i.e. suits for the enforcement
of private rights driven by public-minded sentiments that have public aims of promoting freedom,
15 equality and community. It is arguable that this public law tool was never intended to be used to
resolve private disputes. The provision does not encompass relationships between individuals that
are not of public importance. Relationships between individuals will be the subject of this remedy
only if they directly concern the society. From this perspective, suits for the violation of human
rights violations are best seen as sui generis.
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On the other hand, the provision may be perceived as permitting private law enforcement for
human rights violations. It creates a privately enforceable cause of action for human rights
violations where “a fundamental or other right or freedom guaranteed under [the] Constitution” is
the basis of the claim. From this perspective suits for the violation of human rights violations are
25 best seen as torts.

The acts of public authorities which are alleged to breach human rights will usually be acts in the
public sphere, which are therefore also subject to judicial review. It is thus wrong to try to resolve
important constitutional issues concerning the relationship between the individual and the state
30 within what is essentially a private law doctrine of damages. There is a danger when that is done
of failure both precisely to articulate and carefully to evaluate the considerations of principle and

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 policy with regard to liability in the public law arena as the court focuses on the private interest,
which may result in the scope of such liability being drawn either too widely or too narrowly. The
consequence of focusing more on the claimant’s rights rather than on the reasonableness of the
defendant’s conduct is likely to be an increase in the extent of liability of the public body.
5 Furthermore, the dominance of the private law paradigm may lead to the adoption of rules which
are entirely appropriate in private law but which may not be appropriate in the public law context,
in particular those concerning the measure of damages.

From a different perspective, the high degree of overlap in material scope between judicial review
10 and article 50 of The Constitution of the Republic of Uganda, 1995 in terms of both defendants
and challenged acts, implies that the impact of the suit for violation of human rights must be
considered in any examination of the extent of public bodies’ liability for loss caused by
administrative acts. It would make sense for human rights breaches to be remedied not only by
provision of damages under the article, which it is important to underline is perceived as a residual
15 remedy, but also through orthodox tort law by means of the progressive interpretation of the tort
of negligence. This would save time and other resources that would otherwise be involved in filing
a suit under article 50 of The Constitution, and supplement it with a separate suit for a private law
claim.

20 Any person other than an officious intervener or a wayfarer without any interest or concern beyond
what belongs to any citizen of the country or a person with an oblique motive, having sufficient
interest in the matter in dispute is qualified to be a person aggrieved and can maintain a suit for
judicial redress of public injury arising from breach of public duty or for violation of some
provision of the Constitution or the law and seek enforcement of such public duty and observance
25 of such constitutional or legal provision. What is “sufficient interest” will essentially depend on
the co-relation between the matter brought before the Court and the person who is bringing it. It is
not possible to lay down any strait-jacket formula for determining sufficient interest which may
be applicable in all cases. Of necessity the question has to be decided in the facts of each case.
This point was eloquently summed up by the Indian Supreme Court in the case of S S.P. Gupta v.
30 President of India and others, AIR 1982 SC 149 as follows:

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 What is sufficient interest to give standing to a member of the public would have to be
determined by the Court in each individual case. It is not possible for the court to lay
down any hard and fast rule or any strait-jacket formula for the purpose of defining or
delimiting “sufficient interest.” It has necessarily to be left to the discretion of the
5 Court. The reason is that in a modern complex society which is seeking to bring about
transformation of its social and economic structure and trying to reach social justice to
the vulnerable section of the people by creating new social, collective “diffuse” rights
and interests imposing new public duties on the State and other public authorities
infinite number of situations are bound to arise which cannot be imprisoned in a rigid
10 mould or a procrustean formula. The Judge who has the correct social perspective and
who is on the same wavelength as the Constitution will be able to decide, without any
difficulty and in consonance with the constitutional objectives, whether a member of
the public moving the Court in a particular case has sufficient interest to initiate the
action.
15
The Court will have to decide in each case, particularly when objection is taken, not only the extent
of sufficiency of interest but also the fitness of the person for invoking the jurisdiction under article
50 of The Constitution of the Republic of Uganda, 1995. Ordinarily, it is the affected party who
comes to the Court for a remedy. The Court in considering the question of standing in a particular
20 case, if the affected party is not before it, will enquire as to why the affected party is not coming
before it and if it finds no satisfactory reason for non-appearance of the affected party, if may
refuse to entertain the suit. Public interest litigation is not adversary litigation, but rather a
challenge and incentive for the government and its officers to make basic human rights meaningful
to the poor and vulnerable (see Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of
25 India and others, 1981 AIR 298; 1981 SCR (2) 185; AIR 1981 SC 298). However, if a fundamental
right is involved, the impugned matter need not affect a purely personal right of the plaintiff
touching him or her alone. It is enough if he or she shares that right in common with others.

Fundamental rights are in essence universal standards of what is regarded as fair in the relationship
30 between the State and the citizen. In that context the purpose of Chapter III of The Constitution of
the Republic of Uganda, 1995 is to protect individuals from dictatorial and oppressive
governments. In contrast, torts are legal wrongs which one person or entity commits against
another and for which the usual remedy is an award of damages. They protect people from
wrongful conduct by others and give claimants a right to sue for compensation or possibly an

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 injunction to restrain the conduct. Although many torts protect fundamental rights and liberties,
such as personal liberty, property rights, and provide protection from interferences by other people
or entities and by the state, and despite the fact that nowadays a new culture of human rights as
general principles of justice has developed in which the citizen can legitimately expect that his or
5 her human rights will be respected by his or her neighbours as well as by the government, our
jurisprudence still is that a private person cannot be sued for a breach of another’s fundamental
rights. Suits for enforcement of rights are distinct from ones seeking relief for tortious acts and
omissions as well as ones for breach of contract.

10 The law of contract, from its principles of formation to those governing fairness and remedies, is
complete within its own framework. It can on its own answer the main contractual issues that are
essential to establishing, interpreting, and enforcing contractual relations. Freedom of contract
entails the fact that private parties are free to decide on their contractual arrangements; in principle
they are free to enter into a contract of their choice and on the terms they wish. Consequently
15 parties may agree on a contractual waiver of an interest protected by a fundamental right. The law
of contract provides rules for the way in which parties use their freedom, both relating to the formal
aspects of the agreement and to the substance of the contract. In contract law cases the courts then
weigh interests rather than rights. Article 50 of The Constitution of the Republic of Uganda, 1995
therefore was never intended for claims seeking the enforcement of contractual rights.
20
Article 50 of The Constitution of the Republic of Uganda, 1995 envisages a person or organisation
representing a weaker section of the society, coming to court to complain about a breach of any
fundamental right of any citizen or any public wrong done to the members of the public generally
in breach of any fundamental right. If socially or economically vulnerable people are unable to
25 protect themselves, a public-spirited individual may use this provision on their behalf. A suit for
the enforcement of rights thus should relate to rights that have explicitly been worded in the
Constitution or an international treaty or that can be derived from these rights. A person can
approach the High Court under this article only for the vindication of fundamental rights. The
plaint should therefore articulate facts disclosing the following features of the fundamental right(s)
30 sought to be enforced: (a) an expression of a legal principle concerning human dignity and

10
 personal freedom; (b) in a rule that has been quite broadly formulated; (c) which has been
recognised as “constitutional” by Parliament and / or the courts.

Public interest litigation does not mean that which is interesting as gratifying curiosity or a love of
5 information or amusement (see Stroud’s Judicial Dictionary, Vol. 4 (4th Edn.) but rather relates to
causes in which the public, a class of the community or the community at large, as opposed to
particular localities, has some pecuniary interest or some interest by which their legal rights or
liabilities are affected (see Black’s Law Dictionary, 8th Edn). For that reason, the plaintiff need not
be personally aggrieved in order to file a suit; one needs only to be socially and spiritually
10 motivated and to have sufficient, bonafide interest in the proceeding, acting not for personal gain
or private profit or political motivation but seeking redress for a public wrong or public injury.

The subject matter must be one that; (i) affects a significant number of people not just the
individual; or raises matters of broad public concern; or impacts on disadvantaged or marginalised
15 groups, and; (ii) it must be a legal matter which requires addressing pro bono publico [for the
common good] (see Aboneka Michael and another v. Attorney General, H.C. Misc. Cause No. 386
of 2018). The suit is brought for and in the interest of the public, initiated only for redress of a
public injury, enforcement of a public duty or vindicating interest of public nature (see Muwanga
Kivumbi v. Attorney General, S. C. Constitutional Appeal No. 06 of 2011).
20
The issue at hand must be a serious, justiciable issue, where “serious” refers to a “substantial
constitutional issue” or an “important issue.” The plaintiff must have a real stake in the proceedings
at hand or be ordinarily engaged in the issues raised by the proceedings and the court should
consider any other interrelated matters which may be useful to take into account such as; the
25 plaintiff’s capacity to bring the matter before a court, whether the issues in the case transcend the
rights of those most directly impacted by the decision at hand, whether the issues in the case at
hand have the potential to provide access to justice to those who may otherwise be disadvantaged
yet could be impacted by the decision, whether there are better or more efficient alternatives to
granting standing to the party to bring the matter before a court, how the outcome of the case might
30 impact those who are equally or more directly affected by the issues at hand, and whether there is
potential for a conflict between private and public interests (see Canada (Attorney General) v.

11
 Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524 and Attorney
General of British Columbia v. Council of Canadians with Disabilities, 2020 BCCA 241).

In addition, the plaint should demonstrate that the public spirited litigant has a “genuine interest”
5 in the subject matter if the litigation. The party does not have to establish that it has a direct
personal, proprietary or pecuniary interest in the litigation, but should demonstrate that it is acting
in good faith for the genuine purpose of having a point of law of general public interest resolved.
This is usually established by disclosure in the pleadings of the a real stake the party has in the
proceedings at hand or that it is ordinarily engaged in activates relating to the issues raised by the
10 proceedings.

Public interest litigation is instituted to address or curb social menaces and institutionalised
injustice that affects people on a large scale, for the benefit of the public who may be aware of the
rights but lack financial ability to enforce those rights as well as for those who may not be aware
15 at all about their infringed rights. The mere fact that a decision of court in a case brought by an
individual will benefit the public does not place the suit in the category of public interest litigation.
Where a legal wrong or legal injury is caused to a person or to a determinate class of persons by
reason of a violation of any legal or constitutional right or in case of breach of any fundamental
rights of such person or persons, any member of the public can maintain a suit in the High Court
20 under Article 50 of The Constitution of the Republic of Uganda, 1995, seeking judicial redress for
the legal wrong or injury caused to such person or determinate class of persons.

Since the primary goal of public interest litigation is to ensure that the provisions of the
Constitution or the law are followed to the fullest extent possible, to ensure that unconstitutional
25 laws, acts and omissions do not go unchallenged, in order to advance the cause of the community,
disadvantaged groups and individuals who experience high levels of marginalisation and
oppression, or the public interest, the strict rule of locus standi applicable to private litigation is
relaxed. Although the strict rule of locus standi applicable to private litigation is relaxed in public
interest litigation, not only is it that no facts alleging breach of a fundamental right have been
30 articulated in the plaint in the instant case, but also the plaintiffs are not espousing a cause of the
downtrodden and the poor who have no access to justice. The 1st plaintiff instead seeks to pursue

12
 the cause of persons who are opulent and sophisticated enough to operate bank accounts, and thus
able to seek redress on their own. It therefore cannot, in a representative capacity as a public
spirited organisation, be a person aggrieved, when its own interests are not in issue.

5 I therefore find in answer to the two issues that the plaint not only fails to articulate the fundamental
right(s) alleged to have been infringed, but it also has failed to disclose that the 1st plaintiff has
sufficient interest in the subject matter. On the other hand, the rest of the plaintiffs seek remedies
for alleged violation of contractual obligations rather than fundamental rights. Accordingly the suit
is not properly filed under article 50 of The Constitution of the Republic of Uganda, 1995.
10
Second issue; whether the proceedings are a disguised representative suit and thus incompetent
for lack of a representative order.

The answer to this issue calls for a distinction between public interest litigation on the one hand
15 and representative suits on the other. The distinction between representative suits and public
interest litigation is that the former is in relation to numerous parties who must have the same
interest while the latter relates to a large number of persons who due to various constraints such as
illiteracy, extreme poverty, marginalisation and / or ostracisation by society, cannot sue or defend
their rights (see The Environmental Action Network v. Attorney General, H. C. Misc. Application
20 No.39 of 2001 and British American Tobacco v. The Environmental Action Network H. C. Misc.
Application No 70 of 2002). It is intended for those sections of society which are not in a position
to come to court because of their disadvantaged position. By this class of litigation, the portals of
the Court are thrown open primarily to the poor and downtrodden, the ignorant and the illiterate.

25 Public interest litigation relaxes the principle of locus standi and allows a person whose rights are
not infringed to stand before the courts to present the matter of public interest. The long-standing
rule of locus standi takes the back seat, the court can relax the rule and start to look into complaints
by people on behalf of poor, illiterate and marginalised people who cannot stand on their own foot
for the right cause. In contrast, a “representative suit” is a suit filed against one or more persons
30 on behalf of themselves and others having the same interest in the suit. In that case the procedural
requirements of locus standi are not relaxed. Where the plaintiff sues in a representative character,

13
 the plaint must show that he or she has an actual existing interest in the subject matter (see Order
7 rule 4 of The Civil Procedure Rules). The impugned matter must affect a purely personal right
of the plaintiff touching him or her especially. One person then presents the claim of others
similarly interested in a suit, along with his or her own claim. It is a suit by a person whose legal
5 right has been violated presenting the matter of similarly affected individuals.

Where a large number of people have suffered a similar injury and are seeking a remedy, in order
to avoid numerous suits being filed or in order to obtain a decision on a common question, a
representative suit is filed against one or more persons on behalf of themselves and others having
10 the same interest in the suit. The object is to facilitate the decision of questions that a large number
of people are interested in without recourse to the ordinary requirement of joining as parties all
persons who are interested in a suit, so that the matter involved therein will be finally decided upon
and fresh litigation over the same matters may be avoided. In a representative suit, the following
conditions must be satisfied; (i) the parties must be numerous; (ii) they must have the same interest;
15 (iii) Court must have granted permission or direction; and (iv) notice must have been issued to the
parties whom it is proposed to represent (see Order 1 rule 8 of The Civil Procedure Rules). The
plaintiff in a representative suit must obtain the consent of the persons he or she seeks to represent,
hence the requirement of publication of the notice.

20 In the instant case, the 1st plaintiff has no direct and substantial interest in the subject matter and
the outcome of the suit, which suit has been found not befitting as pubic interest suit, yet the 1st
plaintiff seeks to enforce the rights of a “class of persons who are depositors in financial institutions
and commercial banks in Uganda affected by Bank of Uganda.” On the other hand, the 2nd to 4th
plaintiffs seek a declaration that the directive by the 1st defendant for the transfer of their bank
25 accounts from Crane Bank Limited to DFCU Bank without their consent, which is alleged to have
involved disclosure to the latter without their consent, of confidential private and business
information, violated their rights and the right of a multitude of other Crane Bank Limited
customers. While the 2nd to 4th plaintiffs have existing direct interest in the subject matter of the
suit, they did not comply with the requirements of Order 1 rule 8 of The Civil Procedure Rules.
30 Indeed this is a disguised representative suit and thus incompetent for lack of a representative
order.

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 Fourth issue; whether the plaint discloses a cause of action against the 1st defendant.

A cause of action was defined as a bundle of facts which if taken together with the law applicable
to them give the plaintiff a right to a relief against the defendant (see Attorney General v. Major
5 General Tinyefuza, Constitutional Petition No.1 of 1997). It is alternatively defined as every fact
which is material to be proved to enable the plaintiff succeed or every fact which if denied, the
plaintiff must prove in order to obtain judgment (see Cooke v. Gull, LR 8E.P 116 and Read v.
Brown 22 QBD 31). The pleadings must disclose that; the plaintiff enjoyed a right known to the
law, the right has been violated, and the defendant is liable (see Auto Garage and others v. Motokov
10 (No.3) [1971] E.A 514). Whether or not a plaint discloses a caution of action must be determined
upon perusal of the plaint alone together with anything attached so as to form part of it (see
Kebirungi v. Road Trainers Ltd and two others [2008] HCB 72). Order 7 rule 11 (a) of The Civil
Procedure Rules, requires rejection of a plaint where it does not disclose a cause of action.

15 Whereas section 124 of The Financial Institutions Act, 2004 provides that no suit or other legal
proceedings lies against the Central Bank or any officer, employee or agent of the Central Bank
for anything which is done or is intended to be done in good faith under the Act, in Peter Ssajjabi
and another v. Attorney General and another, Constitutional Petition No. 51 of 2013, it was held
that the said provision gives unjustified and arbitrary protection to the 1st defendant, which is
20 contrary to article 21 (1) of The Constitution of the Republic of Uganda, 1995 which provides that
all persons are equal before and under the law in all spheres of political, economic, social and
cultural life and in every other respect and shall enjoy equal protection of the law. That provision
was thus declared to be in contravention of articles 2, 20 (2), 22, 28 (1), (3) (a), 42, 44 (c) and 126
The Constitution.
25
Although the decision was handed down on 26th August, 2021 while this suit was filed on 6th June,
2017 the general principle is that judicial decisions do not have retrospective effect on decided
cases (see Cadder v. HM Advocate General for Scotland [2010] 1 WLR 2601), or any judicial
construction of a criminal statute that is unexpected and indefensible by reference to the law that
30 has been expressed prior to the conduct in issue (see Bouie v. City of Columbia, 378 U.S. 347
(1964). Thus decided cases cannot be revisited in light of subsequent authorities.

15
 However the position is different where proceedings are ongoing; judicial decisions ordinarily are
retroactive in application to such proceedings, i.e. those decisions necessarily must apply to prior
events. A judicial decision constitutes a new legal precedent, it will ordinarily be applied to all
undecided cases that are subsequently litigated, and regardless of whether the relevant events
5 occurred before or after the new precedent was announced. Judges trying cases apply the law as it
stands at the time of trial (see Willow Wren Canal Carrying Co Ltd v. British Transport
Commission [1956] 1 W.L.R. 213; [1956] 1 All E.R. 567). Under the rule of stare decisis, a prior
case directly in point has the same force and effect upon the court which decided it and on all
inferior tribunals as a statute, unless and until overruled by a higher court. At trial a first instance
10 judge is bound by the doctrine of precedent to apply the law as laid down in a decision of a superior
court, even if there is a possibility that that decision may be reversed on appeal. The objection
based on the ground of immunity therefore fails.

The claim against the 1st defendant is stated to be the tort of breach of its statutory duty. For a
15 claim of this nature, the plaint must show that (i) there is a statutory duty owed by the defendant
to the plaintiff; (ii) there was a breach of that duty by the defendant; (iii) there was damage caused
to the plaintiff; and (iv) that damage must have been caused by the breach of the statutory duty. In
paragraph 13 of the plaint, it is averred that the 1st defendant acted “fraudulently and negligently”
yet liability for this tort arises when the act or omission complained of is so unreasonable that it
20 falls outside the ambit of the discretion conferred upon the statutory body. Failure to meet the
prescribed statutory standard is then treated as unreasonable conduct amounting to negligence. The
defendant may argue that in spite of his contravention of the statute, nonetheless he acted
reasonably in the circumstances and therefore should not be held liable in negligence.

25 The careless performance of a statutory duty does not give rise to a cause of action unless there
exists a right of action for breach of statutory duty simpliciter or a common law duty of care in
negligence. Liability arises where the statutory obligation or prohibition was imposed for the
benefit or protection of a particular class of individuals, and secondly, where the statute creates a
public right and an individual member of the public suffers “particular damage” (see Phillips v.
30 Britannia Hygienic Laundry [1923] 2 KB 832 and Lonrho Ltd v. Shell Petroleum Co Ltd [1980] 1
WLR 627). The plaintiffs have not pleaded the basic facts required to establish this cause of action.

16
 Fifth issue; whether the plaint is bad for misjoinder of parties and causes of action.

According to Order 2 rule 4 (1) of The Civil Procedure Rules, except as otherwise provided, a
plaintiff may unite in the same suit several causes of action against the same defendant or the same
5 defendants jointly; and any plaintiffs having causes of action in which they are jointly interested
against the same defendant or the same defendants jointly may unite those causes of action in the
same suit. The right to relief must have arisen in respect of the same act or transaction or series of
acts or transactions and a common question of law or fact so as to avoid multiplicity of proceedings
(see Barclays Bank DCO v. C. D Patel and others [1959] 1 EA 214). The case should be of such
10 a character that if separate suits were brought, common questions of law or fact would arise.
Therefore causes of action which arose independently and do not show any common question of
law cannot be joined together (see Yowana Kahere v. Lunyo Estates Ltd [1959] 1 EA 319).

A joinder is permitted in cases where the issues or parties involved overlap to give rise to a
15 common question of fact or law, and all rights to relief claimed are in respect of, or arise from, the
same transaction or series of transactions. “Series” means a number of similar or related events or
things, one following another (see Paul Procter (Editor), Cambridge International Dictionary of
English, Cambridge University Press (April 28, 1995). The purpose of a joinder is to hear matters
concurrently where it will increase efficiency and / or fairness. Joinders help courts avoid repetitive
20 cases where the facts are the same. In any event, no decree may be reversed or substantially varied
on appeal on account of any misjoinder of causes of action not affecting the merits of the case or
the jurisdiction of the court (see section 70 of The Civil Procedure Act).

Where in a suit there are two or more plaintiffs and two or more causes of action, the plaintiffs
25 should be jointly interested in all the causes of action. If the plaintiffs are not jointly interest in all
the causes of action, the case is one of misjoinder of plaintiffs and cause of action. Where in a suit,
there are two or more defendants and two or more cause of action, the suit will be bad for
misjoinder of defendants and causes of action, if different causes of action are joined against
different defendants separately. Misjoinder of causes of action occurs when perfectly distinct and
30 unconnected claims are made against one defendant; or where a claim is made for several reliefs
of distinct natures, against several defendants in the same plaint. In order to prevent confusion in

17
 pleadings and decrees, where each party's case is distinct and depends upon its own peculiar
circumstances, a court will anxiously discountenance this multifariousness. Multifariousness
consists in uniting in the same plaint distinct and disconnected subjects, matters or causes.

5 One of the questions raised herein is whether in a case like the present, an aggrieved party has the
choice of pursuing both a public law remedy and a private law remedy in the same suit. The
purpose of the objection raised is to unscramble what the defendants consider to be a poorly drawn
and confused plaint which fails to distinguish properly and state separately different causes of
action, which confusion the plaintiffs have compounded by wrongly joining the defendants and
10 causes in one suit, and to thereby disable the defendants from pleading responsively.

While there can be little doubt about the courts’ power to give a multiplicity of remedies or relief
in appropriate cases, the means of access to those remedies or relief is guided by rules designed to
promote procedural fairness. Therefore, the choice of the means of access may be critical, for if
15 one applies for the wrong remedy the suit will be dismissed on that procedural ground alone. No
such difficulty would arise though where it is possible to seek alternative remedies in the same
proceedings. However where the remedies sought may not be sought cumulatively or in the
alternative, it is necessary to opt for one or other and the choice of the wrong remedy will thus
involve starting all over again.
20
One must resort to public law in order to hold the 1st defendant accountable in the discharge of its
supervisory authority over financial institutions in Uganda. Public law describes the system of
institutions and rules that govern the relationship between the state and the people residing in its
territory. It is that part of the laws of a state insofar as they regulate the relationship between the
25 state and its people. These rules will have different origins: many will be contained in the
constitutional text itself, and others will be found in the common law (judge-made law), in
statutes and delegated legislation, and sometimes the rules will be unwritten, existing in the form
of practice and convention only.

30 Public law is premised on an understanding of law as a constraint on the arbitrary exercise of

power hence there is a greater focus on civic virtue and the role of government to promote the

18
 common good. It is predominantly concerned with delimiting the extent of the power of the state,
hence public law institutions and doctrines were created and invoked for this task. While public
law regulates the relationship between the state and individuals (a vertical relationship), private
law regulates the interaction of individuals (a horizontal relationship). The boundary of one’s
5 private space is determined by the extent to which a person’s actions interfere with the rights of or
harm others. In disputes arising from the sphere of private law, the role of the State is merely to
recognise and enforce the relevant law and to adjudicate the matters in dispute between them
through its judicial organs.

10 Prior to the promulgation of The Constitution of the Republic of Uganda, 1995 the main difference
between public law and private law was whether the act or acts affect society as a whole or an
issue between two or more people. The concept of liability in damages existed solely in private
law. Procedural exclusivity sought to keep the two procedural routes separate and distinct. For
example hitherto there was no right to compensation in public law for maladministration. The law
15 recognised a qualitative difference between a claim by one private individual against another or a
public body acting in the private sphere, and a claim by a private individual against a public body
acting in the public sphere.

There were two procedural avenues used in order to obtain damages from public bodies for
20 unlawful administrative acts; to seek judicial review and supplement that action with a private law
claim; or to bring a claim for damages through an ordinary private law action. When the Court
found an administrative act to be unlawful in the public law sense, it had five principal remedial
options at its disposal: the three “prerogative remedies,” declaration and injunction. These
traditional remedies did not include a power to award damages. All the remedies in judicial review
25 proceedings were discretionary and the prerogative remedies could not, and still cannot, be
obtained in private law proceedings. That distinction currently is not always that sharp in light of
section 8 of The Judicature (Judicial Review) Rules, 2009 which provides that;

8. Claims for damages.

30 (1) On an application for judicial review the court may, subject to sub-rule (2),
award damages to the applicant, if—

19
 (a) he or she has included in the motion in support of his or her
application a claim for damages arising from any matter to which the
application relates; and
(b) the court is satisfied that, if the claim had been made in an action
5 begun by the applicant at the time of making his or her application, he
or she could have been awarded damages.

Nevertheless, damages are not automatically awarded when an unlawful administrative act is
established. An individual who wishes to recover damages in this branch of public law still must
10 also establish the existence of a cause of action in private law. Claimants attempting to recover
compensation from a public body in respect of loss caused by an administrative act, can as a basis
of claiming damages alongside the public law remedies, use an analogous cause of action in private
law such as; nuisance, false imprisonment, malicious prosecution, occupier’s liability, misfeasance
in public office, unlawful interference with property, breach of statutory duty and interference with
15 contractual relations.

On the other hand, the blurring of the distinction between public law and private law in the area of
enforcement of rights arises partly because “the public good is in nothing more essentially
interested, than in the protection of every individual’s private rights” (see William Blackstone,
20 Commentaries on the Laws of England (Clarendon Press, first published 1765– 69, 1827 ed) 101).
This distinction therefore can sometimes be blurred, where some acts may arguably violate both
kinds of law at the same time. Certain acts that are primarily a function of private law may be
considered sufficiently “public” in nature to be classified as violations of public law since many
violations of rights involve the infliction of private harm. Such “private” violations of rights may
25 therefore be enforceable by suits under Article 50 of The Constitution of Uganda, 1995 which
provides as follows;

50. Enforcement of rights and freedoms by courts.

(1) Any person who claims that a fundamental or other right or freedom
30 guaranteed under this Constitution has been infringed or threatened, is
entitled to apply to a competent court for redress which may include
compensation.
(2) Any person or organisation may bring an action against the violation of
another person’s or group’s human rights.

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 Since the expression used in this article is “redress which may include compensation,” just like it
is with judicial review, damages are a residual remedy and will not be automatically awarded under
this provision when a violation of a right is established. Although it is possible to claim damages
5 from a public authority for breaching one’s human rights, the principles upon which damages may
be awarded are somewhat different from those which apply in ordinary tort law. Damages may
only be awarded where the court is satisfied that such an award is necessary to afford just
satisfaction to the person in whose favour it is made.

10 The remedy of damages generally plays a less prominent role in a suit based on breach of the bill
of rights, than in suits based on breaches of private law obligations in the latter case of which,
more often than not, the only remedy claimed is damages. Where an infringement of an
individual’s human rights has occurred, the concern will usually be to bring the infringement to an
end and any question of compensation will be of secondary, if any, importance. Additionally, in
15 considering whether to award on-pecuniary damages and, if so, how much, there is a balance to be
drawn between the interests of victims and those of the public as a whole (see Anufrijeva v. London
Borough of Southwark [2004] 2 WLR 603 at [52]–[53]).

The general principle regarding joinder of causes of action is reflected by Order 2 rule 4 (1) of The
20 Civil Procedure Rules, where a plaintiff may unite in the same suit several causes of action against
the same defendant or the same defendants jointly. However according to rule 8 (2) thereof, if
upon hearing the parties it appears to the court that the causes of action are such as cannot all be
conveniently disposed of together, the court may order any of such causes of action to be excluded,
and consequential amendments to be made, and may make such order as to costs as may be just.
25
The objection raises issues regarding the availability and limits of private law remedies to human
rights violations in respect of suits filed under article 50 of The Constitution of Uganda, 1995.
When the two or more causes of action are joined in one suit, there will be a tension between
rights-based norms which are actionable perse, largely irrespective of fault and where interferences
30 are presumed unlawful without the need to prove loss on the one hand, and the tort of breach of

21
 statutory duty, where the focus is on the reasonableness of the defendant’s conduct and whether
the claimant has in fact suffered loss or damage, on the other hand.

Nevertheless, in the sphere of enforcement of rights, both public and private law remedies have
5 advantages and disadvantages and should operate in conjunction as complements to each other. In
fact, the two systems of control can and should be mutually reinforcing and complementary.
Human rights enforcement would be improved by a careful consideration of remedies offered by
each of the two branches of the law within the context of the same set of facts. There are instances
where a matter brought to court in private interest affects matters that are in the public interest (see
10 for example Muwanga Kivumbi v. Attorney General, S. C. Constitutional Appeal No. 06 of 2011).

I have found no reason, on the facts of this case, to decide that another cause of action founded in
public law cannot be joined in a suit filed under article 50 of The Constitution of Uganda, 1995
where the issues or parties involved overlap to give rise to a common question of fact or law, and
15 all rights to relief claimed are in respect of, or arise from, the same act, transaction or series of
transactions. However, to join therein a claim for private rights arising from breach of contract
would result in joining in the same suit parties who are without a common interest in the subject
of the litigation and have no connection with each other. A suit cannot be maintained either at law
or in equity against two or more persons, who have no common interest in the subject matter of
20 the litigation. Joining the 2nd defendant against whom an alleged breach of contract is made to a
suit intended to enforce the public duties of the 1st defendant therefore constitutes a misjoinder of
causes of action.

According to Order 6 rule 29 of The Civil Procedure Rules, if, in the opinion of the court, the
25 decision of the point of law substantially disposes of the whole suit, the court may thereupon
dismiss the suit or make such other order in the suit as may be just. Since all the objections raised
have been sustained, the suit is accordingly struck out with costs to the defendants.

Delivered electronically this 16th day of May, 2022 ……Stephen Mubiru…………..

30 Stephen Mubiru
Judge,
16th May, 2022.

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