Wakilii

Namara and 3 Others v Attorney General and 5 Others (Civil Miscellaneous Application No. 142 of 2020)

High Court · [2021] UGHCCD 38 · 2021 Preliminary Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections in an application for contempt of court arising from alleged violation of court orders
Decision
Preliminary objections dismissed; matter to proceed to hearing on merits

Observed later treatment

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Holding

The High Court overruled all preliminary objections raised by the respondents. The court held that written authority under Order 1 Rule 12 CPR need only be filed in the case, not necessarily attached to the affidavit. Citing a repealed law is curable under the inherent powers of the court and Article 126(2)(e) of the Constitution where the applicants had cited valid alternative legal bases. The application disclosed a cause of action as the pleadings showed the applicants enjoyed a right which was allegedly violated by the respondents. Joint submissions by counsel did not require written authority as Order 1 Rule 12 applies to parties, not their advocates.

Outcome

Preliminary objections dismissed; matter to proceed to hearing on merits

Facts

The applicants purchased land in Gayaza Buwagga from Ruta Ngambwa. On 27 March 2019, they received a directive from the Commission of Inquiry into Land Matters to halt all activities on the land. The applicants filed Misc. Cause No. 86 of 2019 seeking judicial review, which resulted in court orders quashing the directive and prohibiting enforcement. On 19 January 2020, while the applicants were marking their boundaries pursuant to the court orders, the 2nd respondent (DPC Kasangati), acting on information from the 3rd to 6th respondents, arrested the applicants. The applicants claimed they were brutally arrested and assaulted despite the 2nd respondent being served with the court order. They were detained overnight, released on police bond on 20 January 2020, never charged, but continued to be harassed. The applicants filed this application seeking declarations that the respondents' acts constituted contempt of court. The respondents filed preliminary objections challenging the competence of the application.

Issues

  1. Whether the supporting affidavit is fatally defective for non-compliance with Order 1 Rule 12 of the Civil Procedure Rules
  2. Whether the application is incompetent for being brought under a repealed law
  3. Whether the application discloses a cause of action against the respondents
  4. Whether joint submissions by respondents' counsel offended the law and should be struck out

Orders

  • All preliminary objections overruled.
  • Application to proceed on merits.
  • Costs of the preliminary objections to be in the cause.
  • Directions given for filing of written submissions: Applicants 21 days, Respondents 21 days from service, Rejoinder 15 days from service.
  • Ruling in the substantive application to be delivered by email on notice.

Rules and key headnotes

Civil Procedure — Multiple Parties — Written Authority — Order 1 Rule 12 CPR — Filing Requirement
Where one party swears an affidavit on behalf of others under Order 1 Rule 12 of the Civil Procedure Rules, the written authority need only be filed in the case; the law does not strictly require it to be attached to the affidavit or pleading itself.
Civil Procedure — Citation of Law — Repealed Legislation — Curable Defects
Failure to cite the correct law or citing a repealed law is an error or lapse which is curable under Section 98 of the Civil Procedure Act and Article 126(2)(e) of the Constitution, and does not necessarily render an application incompetent where valid alternative legal bases have been cited.
Civil Procedure — Cause of Action — Test for Disclosure
To disclose a cause of action, a pleading must show that the plaintiff enjoyed a right, that the right was violated, and that it is the defendant who violated the right. The court determines this by looking at the pleading and its annexures only.
Civil Procedure — Multiple Respondents — Joint Submissions by Counsel
Order 1 Rule 12 of the Civil Procedure Rules, which requires written authority for one party to act on behalf of another, applies to parties themselves and not to their advocates. Counsel representing different parties may make joint submissions for convenience without requiring written authority from each other.

Legislation cited (12)

Cases cited (7)

  • Lena Nakalema Binaisa and 3 Others v Mucunguzi Myers (Miscellaneous Application No. 460 of 2013)
  • Tomasi Kallinabiri v George William Kalule (Civil Appeal No. 19 of 2010)
  • Francis Wazarwahi Bwengye v Haki W Bonera (Civil Appeal No. 33 of 2009)
  • Ssande Godfrey v Kanyije James and 2 Others (Civil Suit No. 375 of 2016)
  • Auto Garage Vs Motokov (No.3) 1971 EA at page 514
  • Ainomigisho Winfred and 8 Others v Fatuma Dusto Nalumansi and 3 Others (Miscellaneous Application No. 2084 of 2016)
  • Kapeeka Coffee Works Ltd v NPART (Civil Appeal No. 3 of 2000)

Full judgment

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

Namara and 3 Others v Attorney General and 5 Others (Civil Miscellaneous Application No. 142 of 2020) [2021] UGHCCD 38 (8 June 2021)
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.