Wakilii

Richard Kafumba v Attorney General and 3 others (Civil Appeal No. 207 of 2015)

Court of Appeal · [2021] UGCA 10 · 2021 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling dismissing a notice of motion brought under Article 50 of the Constitution
Decision
Appeal allowed; ruling set aside and suit remitted to the High Court for hearing on its merits before another Judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal, holding that the trial Judge misconceived the law and procedure governing enforcement of rights under Article 50 of the Constitution. A suit under Article 50 may be commenced by notice of motion, which falls within the definition of a suit under the Civil Procedure Act. The question of procedural propriety had already been finally determined by another High Court Judge, rendering the court functus officio on that issue; a Judge of the High Court cannot reverse, vary or set aside a decision of another Judge in the same proceedings except on review. The trial Judge had effectively sat on appeal over a sister Judge's ruling. The suit was remitted for hearing on its merits.

Outcome

Appeal allowed; ruling set aside and suit remitted to the High Court for hearing on its merits before another Judge

Facts

The appellant, a customary owner/licensee of land at Budondo sub-county, Jinja District, filed a notice of motion in the High Court in January 2002 seeking declarations and an injunction to prevent compulsory acquisition of land for the Bujagali Hydroelectric Project without prompt, fair and adequate compensation. The respondents raised preliminary objections that the application was improperly before court and that the court lacked jurisdiction to grant constitutional declarations. In December 2012, Lady Justice Flavia Anglin overruled the objections, held the application disclosed a cause of action, and ordered it to proceed on its merits. That decision was not appealed. The matter was later moved to Justice Namundi, who in May 2015 dismissed the application, holding it was improperly before court, should have been a representative suit, could not raise fraud by notice of motion, and that Article 50 remedies were limited. The appellant appealed the dismissal.

Issues

  1. Whether the trial Judge erred in holding that Miscellaneous Application No. 002 of 2002 was improperly before the court.
  2. Whether the trial Judge erred in refusing to deal with the merits of the application.
  3. Whether one Judge of the High Court may set aside a decision made by another Judge in the same proceedings.

Orders

  • The Ruling of Justice Namundi the subject of this appeal is set aside.
  • The suit shall proceed with full hearing on its merits before another Judge of the High Court without any further delay.
  • The costs of this appeal shall be borne by the respondents jointly and severally.

Rules and key headnotes

Constitutional Law — Enforcement of Rights under Article 50 — Mode of Commencement
A suit for enforcement of rights under Article 50 of the Constitution may be commenced either by plaint or by notice of motion, and a litigant may proceed alone or with others; the choice between an Article 50 action and a representative suit is not exclusive.
Civil Procedure — Definition of Suit — Notice of Motion
The expression 'notice of motion' falls within the meaning of 'suit' as defined in section 2 of the Civil Procedure Act, which encompasses all civil proceedings commenced in any prescribed manner; commencement by notice of motion does not vitiate the proceedings.
Civil Procedure — Functus Officio — Finality of a Judge's Ruling within the Same Proceedings
Where one High Court Judge has finally determined an issue and no appeal is taken, the court is functus officio on that issue; another Judge of the High Court cannot reverse, vary or set aside that decision in the same proceedings except through an application for review under Order 46 of the Civil Procedure Rules.
Constitutional Law — Article 50 — Remedies Available
The remedies available to a party seeking redress under Article 50 of the Constitution are, for all intents and purposes, the same as those available to any litigant proceeding under the Civil Procedure Rules and are not limited in nature.
Civil Procedure — Pleadings and Unpleaded Matters — Consequence of Failure to Plead
Where a party raises unpleaded issues of fact or prays for damages that are not pleaded, proved or applicable, the court may ignore the matter or decline the relief, but it does not dismiss the suit on that account as a preliminary point of law.

Legislation cited (10)

Cases cited (7)

  • Ismail Serugo vs. KCC & Another
  • Olive Cassy Janndoo vs Attorney General of Guyan [1971] AC 972
  • Bukenya Church Ambrose v Attorney General (Constitutional Petition No. 26 of 2006)
  • Nakitto & Brothers Ltd vs Katumba, [1983] HCB 70
  • NAPE vs AES Nile Power High Court Miscellaneous No. 268 of 1999
  • Kaur and others v City Auction Mart Ltd [1967] 1 EA 108
  • Goodman Agencies Ltd v Attorney General & Another (Constitutional Petition No. 3 of 2008)

Full judgment

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Richard Kafumba v Attorney General and 3 others (Civil Appeal No. 207 of 2015) [2021] UGCA 10 (1 April 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.