5 THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF APPEAL OF UGANDA
AT KAMPALA.
10
Coram Hon Justice C.N.B Kitumba, JA
Hon Justice S.B.K Kavuma, JA
Hon Justice A. S. Nshimye, JA
15 CIVIL APPEAL N0. 02/2008
(ARISING FROM HC MISC. APPLICATION
N0. 180/2004
20
MWESIGWA HANNINGTON & 3 OTHERS ::::::::::::APPELLANTS
VS
25 ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::RESPONDENT
JUDGMENT OF A. S. NSHIMYE, JA
30 This is an appeal by the appellants arising from the ruling of Hon Justice
Akiiki-Kiiza of 30.8.2007 sitting in Kampala High Court Miscellaneous
application N0. 180/2004.
The brief background to the appeal is that the appellants were employees
35 of M/s Uganda Railways Corporation. They were arrested by the Military at
gun point and were subjected to a series of acts of mistreatment, torture
and detention incommunicado. Their various property like money were
taken away from them.
1
They jointly filed a miscellaneous application against the Attorney General
by a notice of motion under Article 50 of the Constitution and Statutory
Instrument 26/92.
5 In the motion, they sought enforcement of their constitutional rights by
claiming damages for the unconstitutional treatment occasioned to them by
the agents of the state.
The Attorney General, by affidavit in reply, admitted the arrest and
10 detention of the applicants/appellants but denied torture. The respondent
pleaded that the arrest and detention were lawful.
When the application came up for hearing, a preliminary objection was
raised by the respondent that the procedure of proceeding by Notice of
15 Motion was wrong. It was contended that it should have been by plaint to
enforce Fundamental Human Rights under Article 50 of the Constitution.
The Learned State Attorney representing the Attorney General cited the
authority of this Court CACA 61/2002 Charles Harry Twagira V Attorney
20 General in which this court held (lead Judgment of Hon Justice
Twinomujuni) that enforcement of Fundamental Human Rights under Article
50 of the Constitution should be by plaint.
In reply, counsel for the applicants cited a number of authorities including
25 rule 3 of SI 26/92 now revoked. He contended that the procedure provided
therein was by motion. The trial judge upheld the objection and dismissed
the application with costs, hence this appeal.
2
There are two grounds of appeal namely:-
(1) The learned trial judge erred to have held that the fundamental
5 Human rights and Freedoms guaranteed under the constitution can
only be enforced by an action on a plaint and not by notice of motion.
(2) The learned trial judge erred to have relied on the case of Charles
Twagira VS Attorney General CACA 61/2002 in order to hold that the
10 Fundamental Human Rights and freedom are enforceable by an
action on a plaint and not by notice of motion, whereas the decision
was per incuriam.
When this appeal first came up for hearing on 7th July 2008, counsel for the
15 respondent successfully applied for stay of the hearing to await the
judgment of the Supreme Court in Twagira’s case (supra) which was
appealed against and would act as a test case.
On 9th July 2008, the Supreme Court gave its judgment and held that where
20 an applicant seeks enforcement of Fundamental Human rights under Article
50 and is seeking recovery of damages, the procedure should be by plaint
while for declarations it should be by Notice of Motion.
Counsel for the appellant submitted that the law applicable for enforcement
25 of Fundamental Human rights & Freedoms under Article 50 was SI 26/92
which provided that it shall be by Notice of Motion in the High Court. He
requested in a supplementary submission, that this court should refuse to
3
be bound by the judgment of the Supreme Court in Twagira Vs Attorney
General (supra)
He referred us to The Judicature (Fundamental Rights and Freedoms
5 Enforcement Procedure) Rules, 2008 (SI 55/2008) which were gazetted on
12.12.2008. They provided that all applications under Article 50 of the
Constitution were to be by Notice of Motion. He prayed that the appeal be
allowed with costs.
10 In her written submissions counsel for the respondent stated that the
appellant’s application by way of Motion in the High Court seeking,
interalia, redress of compensation can not stand in view of the Charles
Harry Twagira case (supra). Learned counsel quoted from the lead
judgment of Hon Justice Tsekooko JSC in which he said.
15
“In my view, the rules set in SI N0. 26/1992 can only apply in
limited cases such as bail and Habeaus corpus applications.”
Later, she again quoted him as saying:-
20
“In my experience at the bar and the bench, I can not
understand how by his Notice of Motion the appellant would be
able to call evidence to establish such damages without filing
an ordinary suit.
25
Learned counsel concluded by submitting that the appellant’s clearly stated
that they also sought redress by way of damages. That puts their case in
4
the bracket of the Twagira’s case (supra) hence forth, the High Court would
still have no jurisdiction to hear a matter brought by Notice of Motion
seeking damages among others.
5 Finally, she submitted that the issue of whether a Notice of Motion or plaint
should be used had been a long standing point of confusion. In her view,
the Supreme Court left no stone unturned in settling that matter. She
humbly submitted that this Court is obliged to follow the decision in the
Twagira case (supra). She prayed that the appeal be dismissed with costs.
10
The copy of supplementary submission of the appellant bear a stamp of the
respondent dated 10th February 2009 and the submission of the respondent
was received by this court on 13.Febraury 2009. Counsel for the
respondent did not address us on the new rules, which I said earlier, came
15 into force on 12.12.2008. We, therefore, lost that benefit of knowing her
view on the effect of the new rules of procedure.
I have taken time to consider the submissions of both counsel. I have read
the record, the Supreme Court judgment in the Twagira case (Supra) and
20 also perused the new rules.
The new rules were signed and published by his Lordship the Chief Justice
Benjamin J. Odoki in his capacity as Chairperson of Rules Committee.
25 His Lordship the Chief Justice was also the Chairperson of the coram of
Justices of the Supreme Court who decided the Twagira case (supra) five
months before the new rules came out.
5
Rule 2 of the new rules (SI 55/2008) provides:-
In these rules, unless the context otherwise requires
5 “application” means an application to a competent court under
article 50 of the constitution for redress in relation to the
fundamental rights and freedom referred to in articles 20 to 45
of the constitution”
10 Then rule 3 states:
“Every application shall be made by motion and shall be heard
in open court by a single judge”
15 Redresses for violation in relation to fundamental rights and freedoms
referred to in Articles ranging from N0. 20 to 45 are either declaratory or
compensatory in nature. For example Article 23(7) states:
“A person unlawfully arrested, restricted or detained by any
20 other person or authority shall be entitled to compensation from
that other person or authority whether it is by the state or an
agency of the state or other person or authority”
In the case before us, the appellants among other prayers, sought for
25 damages which is the same as compensation mentioned above. It is my
humble view that the new rules have overtaken the Twagira case and
made it clear that the procedure is by notice of motion.
6
It is worth mentioning that the rules have addressed the observation of his
Lordship Hon. Justice Tsekooko JSC referred to us by counsel for the
respondent quoted above. His Lordship had reflected on his time at the bar
5 and bench and wondered how by a notice of motion, the appellant would
be able to call evidence to establish such damages without filing an
ordinary suit.
Rule 6 of the new rules states:-
10
‘Evidence at the hearing of an application shall be tendered by
affidavit but the court may of its own motion or on the
application of a party to the application direct that evidence be
given orally on any particular matter”
15
It is evident from the above rule, that the Rules Committee has made an
innovation for a simpler way of adducing evidence to prove anything
including damages.
20 I am highly persuaded that there is merit in the appeal and the appellants
should be the first beneficiaries of the new rules. In the result, I would allow
the appeal and make the following orders:-
(1) That the High Court order dismissing the appellant’s application be
25 set aside.
7
(2) That the High Court is directed to hear the appellant’s application
and dispose of it on merit.
(3) The appellants to have costs of the appeal.
5
(4) Costs of objection in the High Court to abide the result of the main
application.
Dated this ……01st ……day of ……April……….2009.
10
A.S. NSHIMYE
15 JUSTICE OF APPEAL
JUDGMENT OF KITUMBA, JA
I have read the judgment of Nshimye, JA, in draft. I agree with it and the
20 orders proposed therein. Since My Lord Kavuma, JA also agrees, this
appeal is allowed on the orders proposed by Nshimye, JA.
Dated at Kampala this …. 01st day of …..April…..2009
25 C.N.B.Kitumba,
Justice of Appeal
JUDGMENT OF S.B.K.KAVUMA
30
I have benefited from reading in draft the judgment of my learned brother
A.S.Nshimye, JA.
8
I agree with the reasoning and orders proposed in that judgment and have
nothing useful to add.
Dated at Kamapal this …1st……. day of ……..April ……………2009
5
S.B.K.Kavuma
Justice of Appeal
10
