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Masawali and 7 Others v Uganda Wild Life Authority and Another (Civil Suit 2 of 2013)

High Court · [2024] UGHC 608 · 2024 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objection challenging compliance with Order 1 Rule 8 Civil Procedure Rules regarding publication of representative order in a representative suit for compensation arising from alleged destruction of crops and property
Decision
Preliminary objection dismissed; suit to proceed with fresh advertisement of representative order

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that although the plaintiffs failed to advertise the representative order as required by Order 1 Rule 8(4) of the Civil Procedure Rules, having instead advertised only the summons to file defence, the mistake arose from ambiguous wording in the court's order and was counsel's error rather than the litigants' fault. Applying Article 126(2)(e) of the Constitution, which requires courts to administer justice without undue regard to technicalities, and noting that the defendants would suffer no prejudice at this early procedural stage, the court overruled the preliminary objection and directed fresh publication of the representative order and list of plaintiffs within one month.

Outcome

Preliminary objection dismissed; suit to proceed with fresh advertisement of representative order

Facts

The plaintiffs, nine named individuals representing 215 others, instituted a representative suit claiming they are customary owners and bonafide occupants of land in Bubyangu sub-county, Mbale district. They alleged that in July 2012, workmen and rangers of the 1st defendant, together with armed UPDF personnel, unlawfully entered their land and destroyed crops and property worth millions of shillings. The plaintiffs sought compensation, a declaration of customary ownership, a permanent injunction, and damages. In October 2012, the court granted leave to institute a representative suit and directed publication of the representative order. However, the order as extracted by counsel directed publication of the summons to file defence rather than the representative order itself. Former counsel advertised only the summons to file defence. When the matter came up for hearing in February 2023, the 1st defendant's counsel raised the issue of non-compliance with Order 1 Rule 8. After several adjournments and submissions, the 1st defendant filed a preliminary objection challenging the mode of presentation of the representative order.

Issues

  1. Whether the plaintiffs complied with Order 1 Rule 8(4) of the Civil Procedure Rules by advertising the representative order in a newspaper of wide circulation.
  2. Whether failure to properly advertise the representative order renders the suit incurably defective.
  3. Whether the court should exercise its discretion to permit fresh advertisement of the representative order.

Orders

  • Preliminary objection overruled.
  • Plaintiffs directed to publish the representative order and the list of the 215 persons represented in Civil Suit No. 2 of 2013 in a daily newspaper of wide circulation within one month from the date of the ruling.
  • A copy of the advertisement to be filed in court within two weeks from the date of publication and a copy served on the defendants.
  • Costs to be in the cause.
  • Suit fixed for mention on 27 August 2024 at 11:30 am.

Rules and key headnotes

Representative Suits — Order 1 Rule 8 — Requirement to Advertise Representative Order
In a representative suit under Order 1 Rule 8 of the Civil Procedure Rules, what must be advertised is the order granting authority to institute proceedings on behalf of other plaintiffs, together with the list of all persons to be represented, not merely the summons to file defence.
Representative Suits — Order 1 Rule 8(4) — Nature of Duty to Give Notice
Although Order 1 Rule 8(4) is couched in mandatory terms, the duty to give notice of institution of a representative suit is imposed on the court rather than on the parties, and court orders directing publication are directory in nature.
Mistake of Counsel — Effect on Litigant
The mistake of counsel in advertising the wrong document should not be visited on litigants who are not conversant with matters of law and who have taken all steps required of them by court. The responsibility to ensure the correct document is published rests with counsel, not with the litigant.
Constitutional Interpretation — Article 126(2)(e) — Justice Without Undue Regard to Technicalities
Where non-compliance with a procedural requirement arises from counsel's error following an ambiguously worded court order, and where no prejudice would be caused to the other party by permitting rectification at an early procedural stage, courts should apply Article 126(2)(e) of the Constitution and administer justice without undue regard to technicalities by permitting fresh compliance rather than dismissing the suit.

Legislation cited (7)

Cases cited (5)

  • Tarlogan Singh v Jaspal Phaquda and Others (1997-2001 UCLR 408)
  • Kasozi Joseph and Others v UMEME (High Court Civil Suit No. 188 of 2010)
  • Kasozi Joseph and 4 Others v Umeme (U) Limited (High Court Civil Suit No. 188 of 2010)
  • Kiiza Luka and Others v Uganda Wild Life Authority (High Court Civil Suit No. 39 of 2010)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)

Full judgment

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Masawali and 7 Others v Uganda Wild Life Authority and Another (Civil Suit 2 of 2013) [2024] UGHC 608 (19 June 2024)
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.