Wakilii

Dr Kizza Besigye & 10 Ors v The Attorney General (Constitutional Petition No. 7 of 2007)

Constitutional Court · [2009] UGCC 3 · 2009 Preliminary Objection Overruled ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Ruling on a preliminary objection of res judicata raised by the respondent at the hearing of a constitutional petition.
Decision
Preliminary objection overruled; petition to proceed to hearing on the merits.

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Treatment recorded in citing cases followed in 2 · distinguished in 2 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The respondent raised a preliminary objection that the petition was res judicata under section 7 of the Civil Procedure Act, the matters complained of having been resolved in the Uganda Law Society litigation and upheld on appeal. The Constitutional Court overruled the objection. It held that the present petitioners were not parties to the earlier suits, and that explanation 6 to section 7 did not deem them to claim under the parties to that public interest litigation. The acts of the State complained of were a repetition of earlier acts and had to be heard on their merits. Accordingly the doctrine of res judicata could not be invoked, the preliminary objection was overruled, and costs were to abide the result of the petition.

Facts

The respondent, at the commencement of the hearing of the constitutional petition, raised a preliminary objection that the petition was barred by res judicata. The respondent argued that the constitutionality of the acts of security agents at the High Court and of the related General Court Martial proceedings had already been determined in Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005), whose majority decisions were upheld by the Supreme Court on appeal. Relying on section 7 of the Civil Procedure Act and its explanation 6, the respondent contended that the petitioners were deemed to claim under the parties to that earlier public interest litigation, particularly as to item 3.2 of the petition concerning the first and second General Court Martial proceedings. The petitioners responded that the petition concerned a second besiege of the High Court premises and a repetition of the State's conduct, and that they had not been parties to the earlier suits.

Issues

  1. Whether the petition, and in particular item 3.2 thereof, is barred by the doctrine of res judicata under section 7 of the Civil Procedure Act by reason of the earlier decisions in the Uganda Law Society litigation.

Orders

  • Preliminary objection overruled.
  • Costs shall abide the results of the petition.

Key headnotes

Civil Procedure — Res Judicata — Section 7 Civil Procedure Act — Identity of parties
The doctrine of res judicata does not bar proceedings where the parties to the later suit were not parties to the former suit, and explanation 6 to section 7 of the Civil Procedure Act does not deem fresh petitioners to claim under the parties to earlier public interest litigation merely because the subject matter overlaps.
Civil Procedure — Res Judicata — Repetition of impugned acts
Where the acts complained of are a repetition of earlier acts of the State, they are not the matter directly and substantially in issue in the former suit and must be heard on their merits, so res judicata cannot be invoked.

Legislation cited (3)

  • Civil Procedure Act s.7
  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 50

Cases cited (4)

  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2000)
  • Karshe v Uganda Transport Co. Ltd [1967] EA 774
  • Karia & Another v Attorney General [2005] EA 83
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.