Kabareebe v Nalwejiso (Civil Appeal No. 34 of 2003) [2002] UGCA 12 (12 January 2002)

## REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CORAM: HON JUSTICE A. E. N. MPAGI-BAHIGEINEJA HON JUSTICE C. N. B. KITUMBA, JA HON JUSTICE C. K. BYAMUGISHA, JA.

### CIVIL APPEAL NO.34 OF 2003

### LT. DAVID KABAREEBE :::::::::::::::::::::::::: APPELLANT

### **VERSUS**

## MAJ. PROSSY NALWEYISO :::::::::::::::::::::::: RESPONDENT

(An Appeal from the decision of the High Court of Uganda at Kampala by Hon Justice G. Tinyinondi made on the 12.12.2002 in High Court Civil Miscellaneous Application No.0111 of 2002)

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### JUDGMENT OF A. E. N MPAGI-BAHIGEINE,JA

This appeal is against the dismissal of High Court Civil Suit No. 1329 of 2000 (Tinyinondi J) where the appellant had sued the respondent for defamation.

The background facts are that the appellant and the respondent are both members of the Uganda Peoples Defence Forces (UPDF) and were under the same unit of General Headquarters at Bombo. The appellant is a Lieutenant while the respondent is a Major.

On 31.7.2000, the respondent wrote a letter to the Chief Political Commissar of UPDF alleging that the appellant was a rumour monger, which dismayed the appellant who therefore feeling defamed by the said letter decided to file a civil suit in the High Court, seeking damages. At the trial, the respondent raised a preliminary objection to the proceedings under Order 6 rules 27, 28 and 29 Civil Procedure Rules, on the ground that the suit was not maintainable as the communication was privileged. The Judge agreeing with the respondent dismissed the suit. Hence this appeal.

The memorandum of appeal originally comprised six grounds but grounds 3,4,5 and 6 were abandoned, leaving only 1 and 2 to be argued. Mr Michael Akampulira appearing with Mr Peter Katusi for the appellant argued them separately.

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On ground No.1, Mr Akampulira pointed out that under Uganda law there were two absolute privileges, namely:

- 1. Under Parliament (Powers and Privileges) Act Cap. 250, section 2, which gives immunity against any legal proceedings, civil or criminal against any member of Parliament for a report made to Parliament, and - 2. Under the Judicature Act (Cap.13) section 46 which protects Judicial officers against proceedings (criminal or civil) for any act done in discharge of their duties.

He contended that military officers were not covered under the foregoing and thus did not enjoy absolute privilege in Uganda and therefore the judge erred to have held otherwise.

In reply, Mr Baingana conceded the fact that the appellant was a junior officer, while the respondent was a senior officer in the same unit, of General Headquarters, at Bombo. He argued that the communication

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complained of was addressed to another senior officer, the respondent and was thus privileged. He submitted that Mr Akampulira's submission was too narrow as it failed to encompass section 183 of the Penal Code Act which deals with statements made by Senior Officers regarding discipline, in a military setting. He stated that the position under criminal law was similar to that in civil suits.

The learned judge held:

"In view of the case law in operation and the provisions of the Judicature Statute and the Regulations governing the Conditions of Service of the officers of the UPDF, I am of the considered view that the communication complained about in these proceedings enjoys absolute privilege.

This application therefore succeeds ...........

It is my further considered view that although the notice if motion application was brought under Order 6, rule 27, 28 and 29 of the Civil Procedure Rules these proceedings took the form of a hearing similar to that under Order 13 rule 2 of the same **Rules.** . the application is hereby allowed and the whole suit dismissed with costs to the Applicant/Defendant."

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Order 6 rules 27, 28 and 29 provide as follows:

27. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the court at or after the hearing:

> Provided that by consent of the parties, or by order of the court on the application of either party, the same

may be set down for hearing and disposed of at any time before the hearing.

28. If, in the opinion of the court, the decision of such point of law substantially disposes of the whole suit, or of any distinct cause of action, ground of defence, set-off, **counterclaim, or reply therein, the court may thereupon** dismiss the suit or make such other order therein as may be just.

**The court may, upon application, order any pleading to** be struck out on the ground that it discloses no reasonable cause of action or answer and, in any such case, or in case of the suit or defence being shown by the pleadings to be frivolous or vexatious, may order the suit to be stayed or dismissed or judgment to be entered accordingly, as may be just. All orders made in pursuance of this rule shall be appealable as of right. $\frac{1}{2}$

and Order 13 rule 2 states:

"2 Where issues both of law and facts arise in the same. suit, and the court is of opinion that the case or any fact thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined."

The learned Judge seems to have got mixed up with procedure. Under Order 6 rule 27, the application was intended to be only on a point of law on which the parties intended to confine themselves and depending

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on its outcome the hearing of the suit would either proceed or be disposed of there and then.

Similarly, under Order 13 rule 2, the learned Judge would have tried issues of law only first and then proceeded to call evidence to establish under what circumstances the communication was made.

The learned Judge delved into issues which required evidence without the other side a chance to produce its evidence.

The plaintiff's counsel, Mr Kiapi, is on record as having complained on 28.09.2002 stated that:

"Issues raised by my learned friend require evidence. In deciding whether or not the communication is official, court should hear evidence of the circumstances under which it was written."

In the case of N. A. S. Airport Services Limited vs A. G. of Keny: (1959) EA 53, it was held that though the object of Order 6, rule 27 is expedition, the point of law must be one which can be decided fairly and squarely one way or the other, on facts agreed or not in issue on the pleadings and not one which will not arise if some fact or facts in issue should be proved.

I do consider that the procedure adopted by the learned Judge was erroneous.

This ground of appeal succeeds therefore.

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The second ground of appeal was to the effect that the matter was res judicata as the matter had been disposed of under Misc. Application No.104 of 2001 under which it had been sought to strike out the plaint as being frivolous and vexatious. Mr Katusi argued that the learned Judge found that there was a cause disclosed as conceded by counsel and proceeded to dismiss the application. It was never heard on merit. Then Misc. Application No.111/02 was filed by the same party and that though the learned Judge must have noted the similarities between both applications, nevertheless went ahead to hear it and dismissed the suit on ground that the communication, the subject matter of the suit was priviledged.

Mr Baingana, however, contended that since the question of res judicata was never/pleaded or raised as an issue, it was not available to the appellant. Pointing out that the first application was never disposed of on merit, he asked court to dismiss this ground of appeal.

The record indicates that the first application Misc Application No.104 of 2001 having been brought under Order 7 rule 11, Civil Procedure Rules was dismissed after counsel for the applicant conceded that the plaint did not disclose an apparent defect. This was never heard on merit as the learned Judge observed at page 57 of the record.

The second application was brought under different provisions of the law. Most importantly, a plea of res judicata must be raised by the pleadings or on the issues which was never done.

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To give effect to a plea of res judicata, the matter directly and substantially in issue in the suit must have been heard and finally decided in the former suit. It simply means nothing more than that a person shall not be heard to say the same thing twice over in successive litigations. Since the two applications were under different provisions of the law and the first one was never disposed of on merit, res judicata does not come into play.

In sum this ground of appeal fails.

Consequently the appeal partially succeeds. Under the circumstances of $10$ this case, each party should bear their own costs.

As Kitumba and Byamugisha JJ. A. both agree the matter should, be placed before another judge for disposal on merit.

Dated at Kampala this $\sim$ day of April 2004.

A. E. N. Mpagi-Bahigeine Justice of Appeal

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE C. N. B. KITUMBA, JA HON. JUSTICE C. K. BYAMUGISHA, JA

# CIVIL APPEAL NO. 34 OF 2003

#### LT. DAVID KABAREEBE:: **::::::APPELLANT**

### **VERSUS**

### MAJ. PROSSY NALWEYISO ::::::::::::::::::::::::::::::::::::

[An Appeal from the decision of the High Court of Uganda at Kampala by Hon. Justice G. Tinyinondi delivered on the 12.12.2002 in High Court Civil Miscellaneous Application No. 0111 of 2002]

# JUDGMENT OF C. N. B. KITUMBA, JA

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I have had the benefit of reading in draft the judgment of Mpagi-Bahigeine, JA. I entirely agree with it. I have nothing useful to $\cdot$ add.

$\frac{1}{2}$ day of April 2004. Dated at Kampala this........

CHS. Filumber C. N. B. Kitumba **Justice of Appeal**

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

CORAM:

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HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE,JA HON. LADY JUSTICE C. N. B. KITUMBA. JA HON. LADY JUSTICE C. K. BYAMUGISHA,JA

### CIVIL APPEAL NO.34 OF 2003

### **BETWEEN**

LT. DAVID KABAREEBE::::::::::::::::::::::::::::::::

### AND

MAJ. PROSSY NALWEYISO :::RESPONDENT

(An appeal from the decision of the High Court of Uganda sitting at Kampala(Tinyinondi J) made on the 12/1/2002 in Civil Miscellaneous Application No.111 of 2002 arising out of HCCS No.1329 of $2000)$

## JUDGMENT OF BYAMUGISHA, JA

Y I read in draft form the lead judgment prepared by Bahigeine JA. I agree

with the orders she has proposed. I would allow the appeal in those terms. 25

...day of. Als Dated at Kampala this.... $.2004.$ $\mathbf{u}_\mathbf{d}$

C. K. Byamu **Justice of Appeal**

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