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Mwesigwa Hannington and 3 ors vs Attorney General (Civil Appeal No. 2 of 2008)

Court of Appeal · [2009] UGCA 17 · 2009 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from High Court ruling dismissing an application for enforcement of fundamental rights
Decision
Appeal allowed; High Court dismissal set aside and matter remitted to the High Court to be heard on the merits

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Holding

The Court of Appeal allowed the appeal, holding that the Judicature (Fundamental Rights and Freedoms Enforcement Procedure) Rules, 2008 (SI 55/2008) had overtaken the Supreme Court decision in Twagira v Attorney General. Under the new rules, every application under Article 50 of the Constitution for redress (whether declaratory or compensatory, including damages) is to be made by notice of motion and heard in open court, with evidence tendered by affidavit unless the court directs otherwise. The High Court order dismissing the appellants' application was set aside and the matter directed to be heard on the merits.

Facts

The appellants were employees of Uganda Railways Corporation. They were arrested at gunpoint by the Military and subjected to mistreatment, torture and detention incommunicado, and their property including money was taken. They jointly filed a miscellaneous application against the Attorney General by notice of motion under Article 50 of the Constitution and Statutory Instrument 26 of 1992, seeking enforcement of their constitutional rights and damages for unconstitutional treatment by state agents. The Attorney General admitted the arrest and detention but denied torture, contending the arrest and detention were lawful. At the hearing the respondent raised a preliminary objection that the proceeding should have been commenced by plaint rather than notice of motion, relying on Charles Harry Twagira v Attorney General. The trial judge upheld the objection and dismissed the application with costs, prompting the appeal.

Issues

  1. Whether fundamental human rights and freedoms under Article 50 of the Constitution can be enforced by notice of motion rather than by plaint.
  2. Whether the trial judge erred in relying on Charles Twagira v Attorney General to hold that such rights are enforceable only by plaint.

Orders

  • The High Court order dismissing the appellants' application is set aside.
  • The High Court is directed to hear the appellants' application and dispose of it on merit.
  • The appellants to have costs of the appeal.
  • Costs of the objection in the High Court to abide the result of the main application.

Key headnotes

Enforcement of Fundamental Rights — Procedure under Article 50 — Notice of Motion
Under the Judicature (Fundamental Rights and Freedoms Enforcement Procedure) Rules, 2008, every application to a competent court under Article 50 of the Constitution for redress in relation to fundamental rights and freedoms, whether declaratory or compensatory in nature, shall be made by notice of motion and heard in open court.
Mode of Commencement — Effect of Subsequent Rules on Earlier Authority
The Judicature (Fundamental Rights and Freedoms Enforcement Procedure) Rules, 2008 overtook the Supreme Court decision in Twagira v Attorney General by clarifying that the proper procedure for enforcement of fundamental rights under Article 50, including claims for damages, is by notice of motion.
Evidence — Proof of Damages in Article 50 Applications
Evidence at the hearing of an Article 50 application is tendered by affidavit, but the court may of its own motion or on the application of a party direct that evidence be given orally, providing a simpler means of proving claims including damages without an ordinary suit.

Legislation cited (7)

  • Constitution of Uganda Article 50
  • Constitution of Uganda Article 23(7)
  • Constitution of Uganda Articles 20 to 45
  • Judicature (Fundamental Rights and Freedoms Enforcement Procedure) Rules, 2008 (SI 55/2008) rule 2
  • Judicature (Fundamental Rights and Freedoms Enforcement Procedure) Rules, 2008 (SI 55/2008) rule 3
  • Judicature (Fundamental Rights and Freedoms Enforcement Procedure) Rules, 2008 (SI 55/2008) rule 6
  • Statutory Instrument 26 of 1992 rule 3

Cases cited (1)

  • Charles Harry Twagira v Attorney General (Civil Appeal No. 61 of 2002)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.