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Attorney General v Senkali and Others (Civil Appeal 2 of 2008)

Supreme Court · [2009] UGSC 38 · 2009 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal by the Attorney General from a Court of Appeal decision that had allowed the respondents' appeal from the High Court
Decision
Appeal allowed; the Court of Appeal decision set aside and the respondents held not to be serving members of the UPDF, their claims also being time-barred

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Holding

The Supreme Court allowed the Attorney General's appeal. It held that the respondents — thousands of former soldiers of defunct armies who had not been deployed for decades — failed to prove, in law or fact, that they remained members of the UPDF; mere prior enlistment is insufficient without acknowledgment by the relevant authorities and readiness for deployment. A successful revolution or coup is a law-creating fact that destroys the existing legal order save for expressly saved provisions, and Legal Notice No. 1 of 1986 terminated the services of servicemen in service before January 1986, the UPDF being an entirely new army. The claims, arising from discharges decades earlier, were also time-barred. Each party to bear its own costs.

Facts

The respondents, said to number some 45,006 and represented through the Uganda Army Servicemen Development Association, were former soldiers who had served in successive Ugandan armies during the period of military coups and revolutions between 1966 and 1986. They claimed they had been disarmed, detained or sent home to await further deployment following the political changes of 1979 and thereafter, but were never formally dismissed, discharged, suspended or interdicted. Decades later, in Civil Suit No. 126 of 2003 (filed 2003), they sued the Attorney General for a declaration that they remained members of the regular army and were entitled to salary arrears, terminal benefits, gratuity, pension, rations, allowances and interest. The High Court dismissed the suit. Defence evidence showed that recruitment into the National Resistance Army and the UPDF was on an individual basis following screening, and was not automatic for members of previous armies. The respondents adduced no evidence of any steps taken to seek absorption or deployment in the new army.

Issues

  1. Whether Legal Notice No. 1 of 1986 terminated the respondents' services in the Uganda Army.
  2. Whether the respondents remained members of, and in the regular service of, the Uganda People's Defence Forces in both law and fact.
  3. Whether the suit was time-barred under the Civil Procedure and Limitations (Miscellaneous Proceedings) Act.
  4. Whether Legal Notice No. 1 of 1986 merely effected a change of the army's name from UNLA to the UPDF.
  5. Whether the respondents were entitled to the reliefs sought.

Orders

  • Appeal allowed.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Effect of Revolution or Coup d'etat — Destruction of the Existing Legal Order
A successful revolution or coup d'etat is a law-creating fact that destroys the entire existing legal order and alters everything in the old order except those provisions specifically saved by the new order.
Constitutional Law — Armed Forces — Distinction Between Public Servants and Members of the Armed Forces
Members of the armed forces are a distinct class of employees and are not public servants; the definition of public service, being service in a civil capacity of the Government, excludes members of the armed forces.
Employment & Labour — Military Service — Proof of Continued Membership of the Armed Forces
Before a soldier can successfully claim against the Government for an infringement of rights in the army, there must be clear proof not only of past enlistment but that the claimant was acknowledged by the relevant government authorities as its soldier and remained ready to be deployed.
Statutory Interpretation — Legal Notice No. 1 of 1986 — Termination of Service and Creation of a New Army
Legal Notice No. 1 of 1986 terminated the appointments of all servicemen in service immediately before January 1986, and the Uganda People's Defence Forces is an entirely new army distinct from those that existed before it, rather than a mere renaming.
Civil Procedure — Limitation of Actions — Claims Arising from Termination Decades Earlier
Claims for service benefits arising from terminations or discharges that occurred many years earlier, brought without sound and reasonable explanation for the delay, are caught by the Civil Procedure and Limitations (Miscellaneous Proceedings) Act and are time-barred.

Legislation cited (8)

  • Legal Notice No. 1 of 1986 s.14A
  • Legal Notice No. 1 of 1985
  • Civil Procedure and Limitations (Miscellaneous Proceedings) Act 1969
  • National Resistance Army Statute s.105
  • Constitution of Uganda 1995 Article 175
  • Constitution of Uganda 1966
  • Interpretation Act Cap 3
  • Civil Procedure Act

Cases cited (6)

  • Andrew Lutakome Kayiira and Paul Semwogerere v Edward Rugumayo and Others (Constitutional Case No. 1 of 1979)
  • Opoloto v Attorney General (1969) E.A. 613
  • Uganda v Commissioner of Prisons, ex parte Matovu (1966) E.A. 514
  • Madzimbamuto v Lardner-Burke (1969) A.C. 645
  • Gulamalli Ushillani v Kampala Pharmaceuticals Ltd (Civil Appeal No. 6 of 1998)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
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.