Charles Harry Twagira v Attorney General & Others (Civil Appeal 4 of 2007)

Supreme Court · [2008] UGSC 36 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from a Court of Appeal decision upholding the High Court's dismissal, on preliminary objections, of an application by notice of motion under Article 50 of the Constitution seeking declarations and redress

Decision

Appeal dismissed; the High Court's dismissal of the Article 50 application for want of jurisdiction upheld

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court dismissed the appeal. It held that an action to enforce a fundamental right under Article 50 may be brought either by plaint or by notice of motion depending on the facts (so ground two partially succeeded), but where a claim requires interpretation of the Constitution it must be pursued by petition in the Constitutional Court under Article 137. The appellant's notice of motion sought declarations implying constitutional interpretation and damages, and was therefore improperly before the High Court, which lacked jurisdiction. An Article 50 application cannot be used to stay or dismiss an ongoing criminal prosecution. The DPP, not being a body corporate, could not be sued, and the police officer was protected for acts within his official duties.

Facts

The appellant was charged in the Chief Magistrate's Court with embezzlement and stealing by an agent. After the prosecution closed its case and the magistrate ruled he had a case to answer, he pursued two parallel proceedings to halt the prosecution. In the second, he filed a High Court notice of motion under Article 50(1) of the Constitution against the Attorney General, the DPP and a police officer, claiming his prosecution and the freezing of his assets infringed his constitutional rights, and seeking thirteen declarations, the setting aside of magistrate's orders, dismissal of the criminal case, and general and exemplary damages. The respondents raised preliminary objections that the High Court lacked jurisdiction and that the motion was an abuse of process. The High Court upheld the objections and dismissed the application, and the Court of Appeal affirmed, holding the suit was improperly before the High Court. The criminal proceedings were later discontinued.

Issues

Whether the Court of Appeal erred in determining the issue of the High Court's jurisdiction without it having been raised as a ground of appeal and without affording counsel an opportunity to address it.
Whether the Court of Appeal failed to address the grounds of appeal and arguments raised before it.
Whether an action under Article 50 of the Constitution can only be brought by plaint.
Whether the High Court had jurisdiction to entertain, by notice of motion, an application seeking declarations that implied constitutional interpretation.
Whether the 2nd respondent (DPP) and 3rd respondent (a police officer) were properly joined to the application.
Whether an independent application under Article 50 could be used to stay or dismiss an ongoing criminal prosecution.

Orders

Appeal dismissed.
First respondent awarded costs in the Supreme Court and in the two courts below.
Second and third respondents awarded costs in the Supreme Court and in the High Court only.
Copies of the judgment to be forwarded to the Rules Committee to review and clarify the procedure under the Judicature (Fundamental Rights and Freedoms) Enforcement Procedure Rules.

Key headnotes

Constitutional Law — Enforcement of Rights — Article 50 — Mode of commencing proceedings

A person claiming that a fundamental or other right or freedom guaranteed by the Constitution has been infringed or threatened may institute proceedings under Article 50 either by plaint or by notice of motion seeking declarations, depending on the facts and nature of the complaint; Article 50 does not prescribe notice of motion as the only mode.

Constitutional Law — Constitutional Interpretation — Jurisdiction — Article 137 v Article 50

Where a claim for redress for violation of a right is subject to interpretation of the Constitution, it must be brought by petition in the Constitutional Court under Article 137; where the right is clearly protected and no interpretation arises, enforcement may be sought by plaint in any competent court.

Constitutional Law — High Court Jurisdiction — Declarations implying constitutional interpretation

An application by notice of motion seeking declarations that imply interpretation of the Constitution, together with general and exemplary damages, is improperly before the High Court, which lacks jurisdiction to entertain it; such damages cannot be established on a notice of motion without an ordinary suit on a plaint.

Civil Procedure — Appeals — Determination of grounds not expressly raised

An appellate court should not allow an appeal on a ground not set forth or implicit in the memorandum of appeal without hearing the affected party; but where the central issue of jurisdiction was implicit in, and a summary of, the grounds actually argued, the court does not err in determining it.

Criminal Law & Procedure — Abuse of Process — Staying prosecution by collateral civil action

An independent civil action under Article 50 cannot be used to stay or dismiss an ongoing criminal prosecution from which no constitutional reference arises; a suit for wrongful or malicious prosecution lies only after the prosecution has concluded, as no cause of action arises before then.

Civil Procedure — Parties — Proceedings against Government and protected officers

Civil proceedings against the Government must be instituted against the Attorney General under Article 250(2); the Director of Public Prosecutions, not being a body corporate, cannot be sued, and a public officer acting within the scope of his official duties is protected from personal suit under the Judicature Act.

Legislation cited (18)

Constitution of Uganda 1995 art.50
Constitution of Uganda 1995 art.50(1)
Constitution of Uganda 1995 art.137
Constitution of Uganda 1995 art.129
Constitution of Uganda 1995 art.250(2)
Constitution of Uganda 1995 art.273
Constitution of Uganda 1995 art.20(2)
Fundamental Rights and Freedoms (Enforcement Procedure) Rules (S.I. No. 26 of 1992)
Legal Notice No. 4 of 1996
Legal Notice No. 3 of 1996
Civil Procedure Rules Order 2 Rule 7
Civil Procedure Rules Order 13 Rule 1(5)
Civil Procedure Rules Order 13 Rule 4
Civil Procedure Rules Order 13 Rule 5
Civil Procedure Rules Order 48 Rules 1 and 3
Judicature Act s.46
Judicature Act s.48
Rules of the Court of Appeal Rule 101

Cases cited (12)

Odd Jobs v Mubia (1970) EA 476
Insurance Co. Ltd v R. Hashen & Sons (1960) EA 592
Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 29 of 2002)
Olushola Oyegbemi Vs. Attorney General (1982) Vol. 2 FNIR 192
Jovelin Barugahare v Attorney General (Civil Appeal No. 28 of 1993)
Uganda Women Lawyers v Attorney General (Constitutional Petition No. 2 of 2002)
Tumushabe v Attorney General (Constitutional Petition No. 6 of 2004)
Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
Casino Grande v Attorney General (Miscellaneous Application No. 191 of 2004)
TEAN v BAT (Miscellaneous Application No. 23 of 2003)
Dr. J. W. Rwanyarare and 2 Others v Attorney General (Miscellaneous Application No. 85 of 1993)
Okumu Vs. Attorney General

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