Naguru, Nakawa Estate Residents Association Limited v Attorney General and Another (Civil Appeal 46 of 2012) [2022] UGCA 327 (26 July 2022)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (CORAM: Catherine Bamugemereire, Stephen Musota and Muzamiru M. Kibeedi, JJA) CIVIL APPEAL N0.46 OF 2012

#### BETWEEN

# NAGURU/NAKAWA ESTATES RESIDENTS ASSOCIATION LTD APPELLANT VERSUS

#### 1. ATTORNEY GENERAL OF UGANDA] 10

2. UGANDA LAND COMMISSION ] RESPONDENTS

lAppeal from the Ruling of the High Courl of lJganda at Kampala, Land Division, (Tuhaise, J.) delivered on 19n January 2012 in Civil Suit No.l46 ot 2011)

### JUDGMENT OF M UZAMIRU M. KIBEEDI. JA

# 1s Backqround

This is an appeal from the ruling and orders of the High Court of Uganda at Kampala (Land Division) delivered by Hon. Justice Night Percy Tuhaise, then Judge of the High Court, on 19tt January 2012 against the appellant.

20 The facts giving rise to this matter are not contentious. They were set out in the Joint Scheduling Memorandum as below: -

- 1. The appellant is a company registered under the laws of Uganda with the only object of securing the rights of the persons formerly resident in the two estates of Nakawa and Naguru and were granted leave to file a representative action in Miscellaneous Application N0.120 of 201'1. The residents were owner-occupiers of their respective units since they were built or successors in title to such original owrler-occupiers. - 2. On the 17m December 20'10, the residents were given a notice from the Permanent Secretary, Ministry of Local Government, to vacate the two estates by 8rh January

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CF'Y C.,

2011 or they would be evicted. The appellant filed Civil Suit No.310 of 2010 on 21s December 2010 in the Civil Division of the High Court under Article 50 of the Constitution seeking to enforce the right to shelter. The appellant simultaneously filed Miscellaneous Application N0.627 of 2010 seeking an Order of temporary injunction against the impending eviction.

- 3. On 13rh January 201 1 , Justice Eldad Mwangusha refused to grant the application for injunction and subsequently refened the file to the Land Division where it was registered as Civil Suit N0.146 of 2011. - 4. At the pre-hearing conference before the trial Judge, Counsel for the Attorney General raised a preliminary objection to the effect that the suit was not maintainable on account of having been commenced without service of the statutory notice upon the Attorney General. - 5. The trialJudge upheld the objection in her Ruling delivered on 19th January 2012, and dismissed the suit with costs on the ground that it was not maintainable, as it was commenced before service of the Statutory Notice on the Attorney General. 40

Aggrieved by the decision of the trial Judge, the appellants appealed to this court against the decision of the trial court on the following grounds:

- 1. That the learned trial Judge erred in law to have held that appellant's suit required service of statutory notice on the respondent before the same could be filed. 45 - 2. That the learned trial Judge erred in law to have dismissed the appellants' suit on the ground that it lacked service of a statutory notice upon the respondent.

However, during the Conferencing done before the Registrar of this court, the parties agreed to join the two grounds of appeal into one issue which was framed as follows: 50

Whether the appellant needed to serve a statutory notice on the Attorney General prior to filing the suit.

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# Representations

55 During the hearing before this court, the appellant was represented by Ms. Stella Nakamya while the respondent was represented by Ms. Patricia Mutesi, Principal State Attorney in the Attorney General's Chambers. The parties were given timelines within which to file their respective submissions.

# Appellant's submissions

60 65 Counsel for the appellant submitted that under Section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap72, one is not required to give notice when one is challenging an administrative action. She submitted that the Act provides for statutory notice before certain suits like torts and contract are instituted. However, that the said Act does not concern itself with constitutional causes of action filed to redress <sup>a</sup> breach of the Constitution. That in a cause of action filed to enforce fundamental rights and freedoms guaranteed in the constitution, no statutory notice is required.

Counsel further submitted that the requirement for statutory notice prior to suing is contrary to Articles 28 and 139 of the Constitution and Section 33 of the Judicature Act which guarantee a right to a fair speedy hearing and the original unlimited jurisdiction of the High

70 Court respectively.

She relied on the case of Kampala Capital City Authority Vs. Kabandize & 20 Ors SCCA No.013 ot 2014.

Counsel concluded by stating that the statutory notice is an undue technicality which can be disregarded so that justice is administered, and the imposition of the statutory notice limits the unlimited jurisdiction of the High Court. Counsel prayed that the suit be allowed to proceed on the merits.

### Respondents' Submissions

Counsel for the respondents conceded to ground 2 of the Appeal in light of the Supreme Court decision in Civil Appeal No,013 ot 2014 Kampala City Council Authority Vs'

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80 Kabandize & 20 Others, where it was held that a plaintiffs failure to serye a Statutory Notice does not vitiate court proceedings.

The Respondent's Counsel, however, submitted that she did not concede to ground 1 of the appeal on the ground that it is a clear requirement of Section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act that intending plaintiffs should serve statutory notice on the Government, a local authority or scheduled corporation. That the Supreme Court in the above case of KCCA Vs Kabandize & 20 Others(supra) stated the

rationale for requirement and noted that a party who decides to proceed without issuing the Statutory Notice risks being denied costs.

With respect to costs, the Respondent prayed that in light of the position of the law having been settled prior to the hearing of the appeal and the Respondent having substantially conceded to the appeal, this court be pleased to order the parties to bear their own costs.

### Analvsis

The dismissal of the suit from which this appeal arises by the trial court was on account of the failure of the appellant to serve the respondent the Statutory Notice prescribed by the

95 Civil Procedure and Limitation (Miscellaneous Provisions) Act before commencement of the suit by the appellant. ln her own words, the trial Judge while dismissing the suit stated thus:

> " . ..it is my finding that this being an ordinary suit, the plaintiff is legally obliged to observe the requirements of the Civil Procedure and Limitation (Miscellaneous Provisions) Act before filing a suit against the defendants...

> The plaintiffs failure to serve the legally requted statutory notice therefore renders this suit incompetent. On this point of law alone, I would sustain the preliminary point of law and dismlss lhls sulf.

Ihe sull rs accordingly dismlssed wrfh cosls to the defendants."

105 The appellant has faulted the trial Judge on the two grounds of appeal which I have already set out at in the background to this appeal. The respondents' Counsel has conceded to only ground 1 of the appeal but not ground 2. Instead, she invited this court to

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hold that it is a requirement of Section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap. 72 that intending plaintiffs should serve statutory notice on the Government, a local authority or scheduled corporation. In my view, the 110 substance of ground 1 and 2 is the same but simply said in different ways. The real issue for investigation by this court is whether the failure of the appellant to serve the respondent the Notice prescribed by the Civil Procedure and Limitation (Miscellaneous Provisions) Act rendered the suit incompetent.

Resolution of the grounds of appeal in this matter revolves around the interpretation and 115 application of Section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap. 72. The Section is couched as follows:

#### "2. Notice prior to suing

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- (1) After the coming into force of this Act, notwithstanding the provision of any other written law, no suit shall lie or be instituted against - a) The Government; - b) A Local Authority; or - c) A Scheduled Corporation - Until the expiration of forty five days after a written notice has been delivered to or left at the office of the person specified in the First Schedule to this Act, 125 stating the name, description and place of residence of the intending plaintiff, the name of the court in which it is intended the suit be instituted, the facts constituting the cause of action and when it arose, the relief that will be claimed and, so far as the circumstances admit, the value of the subject matter of the intended suit. 130 - (2) The written notice required by this section shall be in the form set out in the Second Schedule to this Act, and every plaint subsequently filed shall contain a statement that such notice has been delivered or left in accordance with the provisions of this section."

The Supreme Court had occasion to consider the above provision of the law in the case of 135 Kabandize & 20 Ors v Kampala Capital City Authority (supra.). Hon. Justice Mwangusya, JSC, who wrote the Lead Judgment, with which the other Justices agreed, had this to say as far as is relevant to the resolution of this matter:

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"... the rationale for the requirement to serve a statutory notice was to enable a statutory defendant investigate a case before deciding whether to defend it or 140 even settle it out of court. There was a claim that no statutory notice was served but the appellant was able to file a written statement of defence and adduce evidence in support of his defence. There was also nothing that stopped the parties from settling the case if ever a settlement was an option. This is a clear illustration that failure to serve the Statutory Notice does not vitiate the 145 proceedings as the Court of Appeal rightly found. A party who decides to proceed without issuing the Statutory Notice only risks being denied costs or cause delay of the trial if the Statutory defendant was unable to file a defence because she required more time to investigate the matter. In my view the emphasis should not be on the failure to serve the Statutory Notice but on the 150 consequences of the failure so long as both parties are able to proceed with the case and Court can resolve the issues which the High Court should have done after going through the hearing. Parliament could not have intended that a plaintiff with a cause of action against a Statutory defendant would be totally denied his right to sue even where the defendant knew the facts and was able to 155 file a defence as it was in this case simply because of the failure to file a statutory notice." [Emphasis added]

This court is bound by the decisions of the Supreme Court under the doctrine of stare decisis. I would find that the trial court erred to dismiss the appellant's suit on account of failure to serve the Statutory Notice prescribed the Civil Procedure and Limitation (Miscellaneous Provisions) Act. This appeal would succeed.

## Costs

$\frac{1}{1-x} \times \frac{1}{x}$

In its submissions, the appellant prayed for the costs of this appeal to be granted to it. However, the Respondent prayed that in light of the position of the law having been settled

prior to the hearing of the appeal and the Respondents having substantially conceded to 165 the appeal, this court be pleased to order the parties to bear their own costs.

The general rule is that costs should follow the event and that a successful party should not be deprived of the costs except for good cause. (See S.27 of the Civil Procedure Act, Cap.71 and Francis Butagira v. Deborah Namukasa Supreme Court Civil Appeal No. $6/89$

The decision of the trial Court which gave rise to this appeal was made on 19<sup>th</sup> January N Jozi

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2012. But on the other hand, the decision of the Supreme Court in the case of Kampala City Council Authority Vs. Kabandize & 20 Others, SCCA No.13 of 2014 which has been the basis for disposal of this appeal was delivered on 02<sup>nd</sup> November 2017. This was after the impugned decision of the trial court had already been delivered by the trial court 175 but before disposal of the appeal by this court. Therefore, the respondents cannot be faulted to have raised the point of law the way they did at the time they did. The situation would have been different if they had raised the point of law after the Supreme Court had already pronounced itself in the matter. What is more, the suit has not been resolved on its merits. 180

In those circumstances, I would order each party to bear its own costs before this court. The costs of the High Court shall abide the outcome of the trial on its merits.

# **Conclusion**

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I would order that:

- 1) The appeal succeeds. 185 - 2) The orders of the trial court dismissing the suit with costs be set aside. - 3) The file be returned to the High Court for trial and disposal on its merits - 4) Each party bears its own costs of the appeal while the costs in the High Court shall abide the outcome of the hearing of the matter on its merits. - 190

DATED at KAMPALA this ....................................

**Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL**

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO.46 OF 2012

#### **NAGURU/NAKAWA ESTATES**

RESIDENTS ASSOCIATION LTD ::::::::::::::::::::::::::::::::::: **VERSUS**

### 1. ATTORNEY GENERAL OF UGANDA

2. UGANDA LAND COMMISSION $\begin{bmatrix} \cdots & \cdots & \cdots & \cdots \end{bmatrix}$ RESPONDENTS

[Appeal from the Ruling of the High Court of Uganda at Kampala, Land Division, (Tuhaise, J.) delivered on 19<sup>th</sup> January 2012 in Civil Suit No. 146 of 2011)

CORAM: HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA

HON. JUSTICE STEPHEN MUSOTA, JA

### HON. JUSTICE MUZAMIRU M. KIBEEDI, JA

# JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA, JA

I have had the benefit of reading in draft the judgment by my brother Hon. Justice Muzamiru M. Kibeedi, JA.

I agree with his analysis, conclusions and the orders he has proposed.

Dated this $\frac{2}{3}$ day of $\frac{1}{3}$ day of $\frac{1}{3}$ $= 2022$ Duwhen?

**Stephen Musota** JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 46 OF 2012 (Coram: Bamugemereire, Musota & Kibeedi, JJA) NAGURU/NAKAWA ESTATES RESIDENTS ASSOCIATION LTD:::::::::::::::::::::::::::::::::::: VERSUS

#### 1. ATTORNEY GENERAL OF UGANDA

$\cdot \cdot \cdot$

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2. UGANDA LAND COMMISSION:::::::::::::::::::::::::::::::::: (Appeal from the Ruling of the High Court of Uganda at Kampala, Land Division, (Tuhaise, J.) delivered on 19<sup>th</sup> January 2012 in Civil Suit No.146 of $2011$ )

# JUDGMENT OF CATHERINE BAMUGEMEREIRE JA

I have had the privilege to read the lead opinion of my brother Kibeedi JA and I, without hesitation, agree with his analysis. I find that failure to serve a statutory notice does not vitiate the proceedings. My brother Musota JA is equally in agreement. We find merit in the appeal. In the result, we hereby make the following orders:

- 1) The appeal succeeds. - 2) The orders of the trial court dismissing the suit with costs be and are hereby set aside. - 3) The file is remitted to the High Court for full disposal on its merits. - 4) Each party shall bear its own costs at appeal. However, the costs in the High Court shall abide the outcome of the hearing of the main suit on its merits.

Dated this $\frac{26}{\sqrt{6}}$ day of $\frac{1}{\sqrt{6}}$ 2022.

HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE **JUSTICE OF APPEAL**