THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
HOLDEN AT KAMPALA
MISCELLANEOUS APPLICATION NO. 1302 OF 2000
(Arising from an Order of the High that dismissed HCCS No. 385 of 1996)
BEFORE: THE HON. MR. JUSTICE E.S. LUGAYIZI
This ruling is in respect of an objection that was raised by counsel for the respondent just before Court heard Miscellaneous Application No. 1302 of 2000. That application was intended to seek an order to set aside Court’s order dated 6th June 2000 which dismissed High Court Civil suit No. 385 of 1996.
However, before Court goes into the merits of the objection it is important to understand its background which is briefly as follows. The applicant (a police officer) sued the Attorney General in respect of injuries he sustained when a police car (i.e. 999) in which he was traveling, in the course of his employment, on 24th December 1994 had an accident. In his WSD the Attorney General denied liability. Subsequently, the suit was fixed for hearing but on a number of occasions it never took off. On 23 February 2000 the applicant’s advocate (Mr. Emesu) was present in court when Court once again fixed the suit for hearing on 6th June 2000. When that day came, the respondent’s counsel (Ms. Mayanja) attended Court but the applicant and his advocate did not show up. Accordingly, Court dismissed the suit for lack of interest on the applicant’s part. Following the dismissal the applicant applied to have the said order set aside and the suit reinstated. He did so by way of Notice of Motion under Order 9 rules 19 and 20 and Order 48 rules 1 to 3 of the CPR. His application was accompanied by an affidavit dated 6th September 2000 that was sworn by the applicant himself. Eventually Court fixed the application for hearing on 6th July 2001. However when that day came the hearing did not take place because the State Attorney (Ms. Mayanja) who represented the Attorney General raised a preliminary objection which is the subject of this ruling. That is the background to the preliminary objection.
In her submission in respect of the objection Ms. Mayanja pointed out that the application referred to above could not stand for two reasons. Firstly, that the application was fundamentally defective because it was brought under the wrong law, that is to say, Order 9 rule 19 of the CPR which has nothing to do with setting aside an order of dismissal of a suit. Secondly, that the application was a futile exercise since it was made in respect of a suit that was filed pre-maturely. Ms. Mayanja argued that because the applicant was a civil servant he was supposed to obtain permission from his Permanent Secretary before he sued Government. However, she pointed out that the applicant did not obtain the required permission; and that means that he breached the Public Service Standing Orders (Chapter 1 Section Y-c paragraph 2). For that reason (Ms. Mayanja concluded) that it is futile to seek to set aside the order that dismissed High Court Civil Suit No. 385 of 1996 for there is no proper suit to reinstate anyway.
Mr. Emesu disagreed with the above submissions. On his part he submitted that citing the wrong law per se does not make the Notice of Motion fundamentally defective. Secondly,
Mr. Emesu submitted that since the Attorney General did not show, in his WSD, that it was vital for the applicant to obtain permission from his employer before he filed the suit in question, the Attorney General is deemed to have waived that requirement. He cannot turn round now and insist upon it. For those reasons Mr. Emesu called upon Court to over-rule the objection.
Court will deal with Ms.