Agency for Transformation and Another v Attorney General of Uganda and Another (Constitutional Petition 5 of 2020)

Court of Appeal · [2023] UGCA 405 · 2023 Petition Dismissed With Costs ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Determination of costs following the petitioners' withdrawal of a constitutional petition

Decision

Petition dismissed with costs to the Second Respondent, limited to disbursements and nominal professional fees

The full judgment

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Holding

On the sole issue of costs following the withdrawal of a constitutional petition, the Court held that under rule 16(5) of the Constitutional Court (Petitions and References) Rules, where not all parties consent to a withdrawal the petition stands dismissed with costs, and that consent under rule 16(4) must include a waiver of costs to avoid them. Section 27(2) of the Civil Procedure Act's 'costs follow the event' rule was tempered by these specific provisions. Although the petition raised genuine public interest issues, the petitioners had filed prematurely while a relevant Bill was before Parliament. The Court dismissed the petition with costs to the Second Respondent, restricted to disbursements and nominal professional fees.

Facts

The first petitioner, a think tank promoting equal access to justice, and the second petitioner, a human rights activist and social security researcher, filed a constitutional petition challenging the constitutionality of several sections of the National Social Security Act, Cap 222. The petition was filed in May 2020 and amended in July 2020 to add causes of action against the National Social Security Fund, including the conduct of its Annual General Assembly and its failure to operationalise a Workers Bank. Both the Attorney General and the Fund opposed the petition, the Fund contending that the issues were already addressed by the NSSF (Amendment) Bill, 2019, which had been laid before Parliament in August 2019. On 30 April 2021 the petitioners filed a notice of withdrawal of the petition. At the scheduling conference and the hearing, the Attorney General did not insist on costs, but the Fund remained emphatic that it was entitled to costs of the petition upon its withdrawal. The sole question for determination was whether the Fund was entitled to those costs.

Issues

Whether the Second Respondent is entitled to costs upon the petitioners' withdrawal of the constitutional petition.
Whether the procedure for the withdrawal of a constitutional petition is governed by rule 16 of the Constitutional Court Rules or by the Civil Procedure Act and rules.
Whether the public interest character of the petition is a good reason to deny or limit costs.

Orders

Petition dismissed with costs to the Second Respondent.
Costs restricted to disbursements and nominal professional fees.

Key headnotes

Costs — Withdrawal of Constitutional Petition — Rule 16(4) and (5), Constitutional Court Rules

The withdrawal of a constitutional petition is governed by rule 16 of the Constitutional Court (Petitions and References) Rules; where all parties consent to the withdrawal the petition is dismissed without costs under rule 16(4), but where not all parties consent the petition stands dismissed with costs under rule 16(5) unless the Court on the petitioner's application orders otherwise.

Costs — General Rule — Section 27(2) Civil Procedure Act

Under section 27(2) of the Civil Procedure Act costs follow the event and are awarded to the successful party unless the court for good reason orders otherwise; the discretion as to costs must be exercised judicially within the ambit of that general rule.

Costs — Consent to Withdrawal — Requirement of Waiver of Costs

Consent to the withdrawal of a petition contemplated by rule 16 of the Constitutional Court Rules is only recognised where it includes a waiver of costs and proof of that consent is duly filed; a party that seeks costs is deemed to have withheld its consent to the withdrawal.

Public Interest Litigation — Costs — Disbursements and Nominal Professional Fees

Where a petition genuinely raises issues of public interest and costs are nonetheless awarded, such costs should be restricted to disbursements and nominal professional fees so as not to deter litigants from bringing constitutional and public interest matters before the court.

Costs — Withdrawn Petition — Absence of a Successful Party

A petition withdrawn before it has been heard can scarcely be considered to have yielded a successful party to whom costs may be awarded under section 27(2) of the Civil Procedure Act, which is why rule 16(4) of the Constitutional Court Rules provides for dismissal without costs where the parties consent.

Legislation cited (9)

National Social Security Act, Cap 222
Constitutional Court (Petitions and References) Rules, SI No. 91 of 2005, rule 16(1)-(6)
Constitutional Court (Petitions and References) Rules, SI No. 91 of 2005, rule 23
Civil Procedure Act, Cap 71 s.27(1)
Civil Procedure Act, Cap 71 s.27(2)
Civil Procedure Rules, Order 25 rules 1 and 2
Court of Appeal Rules, rule 94
Supreme Court Rules, rule 90(1)
Supreme Court Rules, rule 90(4)

Cases cited (6)

David Kamulerne v Attorney General (2014) UGSC 94
Kizza Besigye v Yoweri Kaguta Museveni & Electoral Commission, UGSC 4 (per Odoki, CJ and Karokora, JSC)
Prince J Mpuga Rukidi v Prince Solomon Iguru & Others (Constitutional Appeal No. 18 of 1994)
Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
Advocates for Natural Resources Governance and Development & 2 Others v Attorney General & Another [2013] UGCC 10
Crane Bank Limited (in Receivership) v Sudhir Ruparelia & Meera Investments Limited

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