THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF APPEAL OF UGANDA
Coram Hon Justice C.N.B Kitumba, JA
Hon Justice S.B.K Kavuma, JA
Hon Justice A. S. Nshimye, JA
CIVIL APPEAL N0. 02/2008
(ARISING FROM HC MISC. APPLICATION
MWESIGWA HANNINGTON & 3 OTHERS ::::::::::::APPELLANTS
ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::RESPONDENT
JUDGMENT OF A. S. NSHIMYE, JA
The brief background to the appeal is that the appellants were employees 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.
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.
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 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 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 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 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.
There are two grounds of appeal namely:-
When this appeal first came up for hearing on 7th July 2008, counsel for the 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 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 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 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 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.
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.
Later, she again quoted him as saying:-
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.
The new rules were signed and published by his Lordship the Chief Justice Benjamin J. Odoki in his capacity as Chairperson of Rules Committee.
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.
Rule 2 of the new rules (SI 55/2008) provides:-
Then rule 3 states:
In the case before us, the appellants among other prayers, sought for 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.
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 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:-
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:-
Dated this ……01st ……day of ……April……….2009.
JUSTICE OF APPEAL
JUDGMENT OF KITUMBA, JA
I have read the judgment of Nshimye, JA, in draft. I agree with it and the 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
Justice of Appeal
JUDGMENT OF S.B.K.KAVUMA
I have benefited from reading in draft the judgment of my learned brother A.S.Nshimye, JA.
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
Justice of Appeal