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Nakawa-Naguru Residents Association v Attorney General & Anor (Civil Suit No. 146 of 2011)

High Court · [2012] UGHC 410 · 2012 Suit Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections to competency of suit
Decision
Suit dismissed for failure to comply with statutory notice requirement under the Civil Procedure and Limitation (Miscellaneous Provisions) Act

Observed later treatment

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Holding

Held that the objection to the Plaintiff's capacity to sue cannot be determined as a pure point of law because it requires extrinsic evidence and is therefore a triable issue. Held that the requirement under section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act to serve 45 days' statutory notice applies to suits brought by ordinary plaint against Government or scheduled corporations, even where constitutional rights are pleaded. Where the cause of action as pleaded arises from breach of a memorandum of understanding (contract), the suit is not exempted from the statutory notice requirement. Failure to serve the statutory notice renders the suit incompetent. Suit dismissed with costs.

Outcome

Suit dismissed for failure to comply with statutory notice requirement under the Civil Procedure and Limitation (Miscellaneous Provisions) Act

Facts

The Plaintiff, a residents' association representing tenants of Nakawa/Naguru housing estates, filed suit against the Attorney General and Uganda Land Commission alleging breach of a memorandum of understanding signed between the registered tenants and Government. Under the MOU, tenants were promised first priority to purchase flats after redevelopment. The Plaintiff alleged Government was about to hand over the land to a developer without honoring the MOU, causing dispossession of tenants' interests. Following the scheduling conference, counsel for the Defendants raised two preliminary objections: that the Plaintiff lacks capacity to sue as a non-existent legal person, and that no statutory notice under section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act was served before filing suit. The Plaintiff conceded no statutory notice was served but argued the requirement does not apply where constitutional rights are being enforced.

Issues

  1. Whether the Plaintiff has capacity to sue as a legal person.
  2. Whether the suit is competent where no statutory notice was served on the Defendants before filing suit against the Government and a scheduled corporation.

Orders

  • Preliminary objection on lack of capacity to sue dismissed as not a pure point of law.
  • Preliminary objection on failure to serve statutory notice sustained.
  • Suit dismissed with costs to the Defendants.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Pure Points of Law — Test for Determination
A preliminary objection must raise a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is extrinsic evidence or judicial discretion. Where a point of law can only be ascertained by extrinsic evidence, the matter becomes a triable issue to be determined on adducing relevant evidence during trial rather than being determined as a preliminary point of law.
Civil Procedure — Statutory Notice Requirement — Application to Suits Against Government and Scheduled Corporations
Under section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 72, no suit shall lie against the Government or a scheduled corporation until the expiration of 45 days after written notice has been delivered. This requirement applies to suits brought by ordinary plaint, even where the plaintiff seeks to enforce constitutional rights. Where a suit is filed as an ordinary civil suit and handled in the ordinary manner including scheduling conference, the plaintiff is not exempted from the statutory notice requirement.
Civil Procedure — Statutory Notice — Inapplicability to Special Constitutional Proceedings
The exemption from statutory notice requirements for suits enforcing constitutional rights applies only to special proceedings such as miscellaneous applications that are handled expeditiously, not to ordinary civil suits that proceed through the normal stages of civil procedure including scheduling conferences.
Contract Law — Characterisation of Cause of Action — Constitutional Rights and Breach of Contract
Where a plaint alleges breach of a memorandum of understanding and the cause of action as pleaded arises from the alleged breach of that agreement, the suit is properly characterised as arising from contract, notwithstanding that the plaintiff also pleads constitutional rights to shelter. The fact that most rights enforced by courts are enshrined in the Constitution does not place a suit beyond contract where the pleaded cause of action is contractual breach.
Civil Procedure — Competence of Suit — Effect of Failure to Serve Statutory Notice
Failure to serve the statutory notice required under section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act before filing suit against Government or a scheduled corporation renders the suit incompetent. The prescribed time allows Government or scheduled corporations to investigate and if possible settle the case out of court, thereby expediting justice and minimising litigation.

Legislation cited (4)

Cases cited (7)

  • Sajjabi v Timber Manufacturer Ltd (Civil Suit No. 1016 of 1977)
  • Mukisa Biscuit Manufacturing Co v West End [1969] EA 696
  • Lusweswe v Kasule & Anor [1987] HCB 62
  • L Rwakasoro & 5 Ors v Attorney General [1982] HCB 40
  • John Oketcho v Attorney General (HCMC 124 of 2009)
  • Commissioner General of Uganda Revenue Authority v Meera Investments (Civil Appeal No. 22 of 2007)
  • Rwanyarare & Ors (Miscellaneous Application No. 85 of 1993)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Nakawa-Naguru Residents Association Vs Attorney General & Anor (Civil Suit No. 146 of 2011) [2012] UGHC 410 (18 January 2012)
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.