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Nantongo and 28 Others v Gate Way Bus Services (Civil Appeal No. 66 of 2019)

Court of Appeal · [2022] UGCA 199 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court ruling dismissing consolidated civil suit on an application challenging locus standi and limitation
Decision
Appeal partly allowed; Miscellaneous Application dismissed and the consolidated civil suit remitted to the High Court for hearing before a different Judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal partially allowed the appeal. It held that the claims were rooted in negligence causing personal injury, governed by the three-year limitation period under the Limitation Act, not the one-year period under the Law Reform (Miscellaneous Provisions) Act Cap 79; the suit was therefore not time barred. The plaintiffs were not fictitious, being identifiable accident victims in police records. An advocate may only be condemned to personal costs for gross negligence or egregious misconduct, and not without a fair hearing; neither condition was met. The grounds on fair hearing of parties, consideration of submissions, alleged affidavit falsehoods and admission by non-rejoinder failed. The matter was remitted for hearing before another Judge.

Outcome

Appeal partly allowed; Miscellaneous Application dismissed and the consolidated civil suit remitted to the High Court for hearing before a different Judge

Facts

On 30 July 2004 an accident occurred on the Kampala–Masaka Road involving the respondent's motor vehicle. The appellants, who were injured passengers, bystanders and other travellers, alleged the accident was caused by the negligence of the respondent's driver and claimed damages for negligence and personal injury. They filed several suits which were consolidated into High Court Civil Suit No.45 of 2007. The respondent applied (Miscellaneous Application No.79 of 2014) for orders that the claimants were fictitious and without locus standi, that some claims were time barred, and that plaintiffs' counsel lacked instructions. On 29 June 2015 the trial Judge allowed the application, finding the claimants concocted and fictitious, the claims time barred under the Law Reform (Miscellaneous Provisions) Act Cap 79, and ordering counsel to pay costs personally. The appellants appealed against the dismissal and costs order.

Issues

  1. Whether the appellants were denied a fair hearing in the application that led to dismissal of their consolidated suit.
  2. Whether the appellants' claims were time barred under the Law Reform (Miscellaneous Provisions) Act Cap 79 or governed by the Limitation Act.
  3. Whether the trial Judge erred in finding the plaintiffs concocted, fictitious and without locus standi.
  4. Whether the trial Judge erred in ordering appellants' counsel to personally pay the costs of the suit, and in doing so without a hearing.
  5. Whether failure to file an affidavit in rejoinder amounted to an admission of the appellants' averments.

Orders

  • Appeal partially allowed on grounds 2, 3, 4 and 5; dismissed on grounds 1, 6, 7 and 8.
  • The orders of the trial Judge are set aside and substituted with an order dismissing Miscellaneous Application No. 79 of 2014.
  • High Court Civil Suit No.45 of 2007 remitted to the High Court at Masaka to be set down for hearing before a different Judge.
  • Each party to bear its own costs of the appeal.
  • Costs arising from the High Court to abide the outcome of the hearing.

Rules and key headnotes

Limitation of Actions — Negligence and Personal Injury — Applicable Limitation Period
Claims founded on negligence resulting in personal injury are governed by the three-year limitation period under section 3 of the Limitation Act, and where the pleadings disclose negligence rather than a claim under the Law Reform (Miscellaneous Provisions) Act Cap 79, the one-year period in section 6(3) of that Act does not apply.
Locus Standi — Existence of Plaintiffs — Proof from Record
A finding that plaintiffs are fictitious or concocted cannot stand where the record, including a police report and accident particulars, identifies them as real persons present at the accident scene who correspond to the named claimants.
Costs — Personal Liability of Advocate
An advocate may be ordered to pay costs personally only where he has caused costs to be incurred without reasonable cause, unduly delayed the matter, or is guilty of gross negligence or egregious misconduct, and a court must give reasons and a fair hearing before making such an order.
Fair Hearing — Opportunity to be Heard before Adverse Costs Order
An order condemning an advocate to pay costs personally made without affording him an opportunity to be heard, and without being sought in the application, breaches the right to a fair hearing and is liable to be set aside.
Affidavits — Affidavit in Rejoinder — No Admission from Failure to File
The Civil Procedure Rules do not provide for an affidavit in rejoinder in interlocutory applications, and the failure of a party to file such an affidavit cannot be interpreted as an admission of the facts contained in an affidavit in reply.
Affidavits — Alleged Falsehoods — Distinction from Error of Law
An alleged error of law in an affidavit does not constitute a falsehood warranting that the affidavit be struck out, and a party alleging falsehood must prove it through cross-examination of the deponent.

Legislation cited (7)

Cases cited (8)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya vs. R (1957) E.A. 336
  • Okeno vs. Republic (1972) E.A. 32
  • Charles B. Bitwire v Uganda (Criminal Appeal No. 23 of 1985)
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition Appeal No. 4 of 2009)
  • Kithende Kalibogha and 2 Others v Eleonora Wismer (Civil Appeal No. 34 of 2010)
  • Gordon Sentiba and 2 Others v Inspector General of Government (Civil Appeal No. 6 of 2008)
  • Abraham vs Jutsun (1965) 2 ALL.E.R

Full judgment

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

Nantongo and 28 Others v Gate Way Bus Services (Civil Appeal No. 66 of 2019) [2022] UGCA 199 (29 July 2022)
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.