Wakilii

Kampala Capital City Authority v Kabandize & 10 Ors (Civil Appeal 13 of 2014)

Supreme Court · [2017] UGSC 44 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal and cross-appeal to the Supreme Court from a decision of the Court of Appeal
Decision
Appeal and cross-appeal dismissed; judgment and orders of the Court of Appeal upheld. (The substantive computation of terminal benefits had by then been remitted to and dealt with by the High Court.)

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed the appeal, holding that section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, requiring a statutory notice of intention to sue the Government, a local authority or a scheduled corporation, is directory, not mandatory. Although the word "shall" is used, the focus must be on the consequences of non-compliance and whether Parliament intended total invalidity. Where the defendant knew the facts and could file a defence, failure to serve the notice does not vitiate the proceedings. The court declined to disturb the concurrent factual finding that no notice was served, upheld the Court of Appeal's costs orders, and dismissed the cross-appeal.

Facts

The respondents were long-serving permanent employees of the appellant's predecessor, the City Council of Kampala, with service ranging from 6 to 36 years. On 4 April 1997 the appellant terminated their services and paid them terminal packages. Dissatisfied, and claiming unpaid entitlements under the Local Government Act 1997, the respondents sued in the High Court. The plaint pleaded that a statutory notice of intention to sue had been served on the Town Clerk; the defence did not admit service. The trial judge found the statutory notice had not been served and, treating the requirement as mandatory, dismissed the suit as incompetent, with each party bearing its own costs. On appeal, the Court of Appeal agreed the notice had not been served but held the requirement directory, found that the terminations breached the respondents' terms and conditions, and remitted the file to the High Court for disposal on the merits, awarding the respondents half their costs in that court. The appellant appealed to the Supreme Court and the respondents cross-appealed.

Issues

  1. Whether the requirement to serve a statutory notice of intention to sue the Government, a local authority or a scheduled corporation under section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act is mandatory or directory.
  2. Whether failure to serve the statutory notice renders a subsequently filed suit incompetent and vitiates the trial.
  3. Whether the Supreme Court, as a second appellate court, should re-evaluate the concurrent finding of fact that the statutory notice had not been served.
  4. Whether the respondents should have been awarded costs in the High Court and full costs in the Court of Appeal.

Orders

  • Appeal dismissed with costs to the respondents.
  • Cross-appeal dismissed with costs to the appellant.
  • Judgment and orders of the Court of Appeal upheld.

Key headnotes

Statutory Interpretation — Meaning of "shall" — Mandatory versus directory provisions
The use of the word "shall" in a statutory provision does not by itself render the provision mandatory; whether a requirement is mandatory or directory turns on the consequences of non-compliance and whether Parliament can fairly be taken to have intended total invalidity for a failure to comply.
Civil Procedure — Statutory notice of intention to sue the Government, a local authority or a scheduled corporation — Effect of non-service
The requirement under section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act to serve a statutory notice of intention to sue the Government, a local authority or a scheduled corporation is directory; failure to serve it does not render the suit incompetent or vitiate the proceedings where the defendant was aware of the facts and was able to file a defence, though a plaintiff who proceeds without notice risks being denied costs or causing delay.
Civil Procedure — Second appeal — Interference with concurrent findings of fact
A second appellate court will not interfere with a concurrent finding of fact of the trial court and the first appellate court where there was competent evidence to support the finding; it is not open on second appeal to reassess the sufficiency of that evidence or the reasonableness of the finding.
Civil Procedure — Costs — Judicial discretion under section 27 of the Civil Procedure Act
The award of costs is in the discretion of the court under section 27 of the Civil Procedure Act, and a successful party is awarded costs unless there is good reason to deny them; an appellate court will not interfere where the discretion has been properly exercised, such as declining to condemn a party in costs where the trial was prematurely terminated through no fault of the successful party.
Constitutional Law — Article 126(2)(e) of the Constitution — Substantive justice without undue regard to technicalities
Under Article 126(2)(e) of the Constitution, substantive justice must be administered without undue regard to technicalities; accordingly, non-service of a statutory notice cannot vitiate a trial where a defence was on record and acted upon.

Legislation cited (9)

  • Civil Procedure and Limitation (Miscellaneous Provisions) Act 1969 s.2
  • Civil Procedure and Limitation (Miscellaneous Provisions) Act 1969 s.1
  • Civil Procedure Act s.27
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.274
  • Constitution of Uganda 1995 art.126(2)(e)
  • Constitution of Uganda 1995 art.20
  • Local Government Act 1997
  • Parliamentary Elections Act s.62

Cases cited (8)

  • Ostraco Ltd v Attorney General (2003) 2 EA 654
  • Rwanyarare and others v Attorney General (2003) 2 EA 664
  • Sitenda Sebalu v Sam K. Njuba and the Electoral Commission (Election Appeal No. 26 of 2007)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Regina v Soneji and others [2005] UKHL 49
  • Attorney General's Reference (No. 3 of 1999)
  • R. Mohamed Ali Hassan v R (1941) 8 E.A.C.A. 93
  • F v Hassan bin Said (1942) 9 E.A.C.A. 62
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.