The Aids Support Organisation (TASO) Limited v Wataka (Miscellaneous Application 116 of 2023) [2024] UGHC 34 (31 January 2024)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA MISC. APPLICATION No. 116 OF 2023

## THE AIDS SUPPORT ORGANISATION (TASO) (U) LTD::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## **WATAKA JOHN ::::::::::::::::::::::::::::::::::::**

### **RULING**

#### **Background**

This application was brought under O.6 r.28 &r.29, O.52 r.1 &3 of the Civil Procedure Rules and Section 98 Civil Procedure Act on grounds that:

- 1. This Honorable Court is not the proper forum to hear disputes arising out of negligence while carrying out HIV and AIDS testing, counselling and care pursuant to the provisions of the HIV and AIDs Prevention and Control Act, 2015, which confers jurisdiction on the Chief Magistrates Court/ Magistrate Grade1 Court. - 2. That cost for application be provided for.

The Applicant's case is supported by the affidavit of Dr. Miya Yunus dated 19th May, 2023 and briefly the grounds are that: -

- a) The Respondent /Plaintiff filed Civil Suit No. 10 of 2023 against the Applicant/Defendant for negligence and for a declaration that the Applicant's staff negligently carried out an HIV test and care when they issued the Respondent/Plaintiff with erroneous HIV results and negligently dispensed Anti-retroviral drugs (ARVs) to the Respondent for a period of 7 years yet he was allegedly HIV negative. - b) That while this Honourable Court has original, unlimited jurisdiction in all matters, there is an Act of parliament, The HIV and AIDs Prevention and Control Act of 2015 in force that regulates matters relating to HIV and AIDS testing care, counselling and protection which constitutes the Respondent's case. - c) That the Respondent/Plaintiff's suit is therefore improperly before this Honourable Court by invoking the jurisdiction of this Honorable Court which by statute lies within the Chief Magistrate/ Grade 1 Magistrate Court. - d) That accordingly this Court is without the necessary and requisite jurisdiction to hear and dispose of the matter brought before it as a matter of law. - e) That the Respondent seeks declaration and damages whose remedies and orders can be provided by the Chief /Magistrate Grade 1 Courts.

f) That the Respondent/Plaintiff's suit ought to be dismissed with costs for want of jurisdiction.

The Respondent filed an affidavit in reply sworn by Wataka John dated 25th July 2023 and briefly stated that: -

- a) The application is misconceived and improperly before this court and the same ought to be dismissed with costs. - b) That the Respondent instituted Civil Suit No. 10 of 2023 against the applicant is for negligence and general damages worth UGX 150,000,000 among others. - c) That in the year 2016, the Respondent approached the Applicant's facility in Jinja for an HIV test which issued him with wrong HIV test results that indicated that he was HIV positive whereas not. - d) That the Applicant subjected him to a cocktail of ARVs for a period of 7 years until 2022 when he actually discovered that he was HIV negative. - e) That he was informed by his lawyers, which information he believes to be correct, that this Court has original unlimited jurisdiction vested to it by the Constitution of the Republic of Uganda to handle this matter. - f) That he had been informed by his lawyers which information he believes to be correct that the original unlimited jurisdiction of this Honorable Court cannot be ousted, repealed, altered or reversed by a mere statute or Act of Parliament - g) That he had been informed by his lawyers, which information he believes to be correct, that the HIV and AIDS Prevention and Control Act of 2015 that the Applicant is relying on does not specifically state that all matters concerning HIV should be filed in the Chief/Magistrates' Courts. - h) That he had been informed by his lawyers which information he believes to be correct that the HIV and AIDS Prevention and Control Act simply defines what the term "Court" means according to the Act but it does not limit the jurisdiction of all matters pertaining to negligence to the Chief Magistrates Courts or the Magistrate Grade 1 Court. - i) That he had been informed by his lawyers which information he believes to be correct that his claim or relief or remedy for general damages sought for in this action is way beyond the pecuniary jurisdiction of the Chief Magistrate's Court or Grade 1 Court and can only be handled by this court. - j) That the application was brought in bad faith as it was intended to turn the Respondent away from the seat of justice without being heard.

The Applicant filed an affidavit in rejoinder deponed by Dr. Miya Yunus dated $1^{st}$ August 2023 and briefly stated;

a) That he was informed by his lawyers which information he believes to be correct that the Respondent's affidavit in reply is fatally defective and it should be struck off with costs as it was not commissioned.

- b) That he was informed by his lawyers which information he believes to be correct that the Applicant's motion is intended to save court's time and avoid abuse of court process by resolving or deciding a sole question of law that this Honourable Court is not the proper forum for hearing disputes that may arise out of the HIV and AIDS Prevention and Control Act, 2015 which confers jurisdiction on the Chief Magistrate Court or the Magistrate Grade 1 Court. - c) That he was informed by his lawyers which information he believes to be correct that the Respondent did not prove or justify the demand for UGX 150,000,000 as general damages in his Plaint and that the same can only be awarded at the discretion of Court therefore the Plaintiff is precluded from relying on the same to file this matter in this Honourable Court - g) That he was informed by his lawyers which information he believes to be correct that the Respondent's claims are improperly before this court since he has used a back channel or back door to gain a seat before the temple of justice which is clearly an abuse of court process by attempting to override the will and intent of the draftsman in enacting the provisions of the HIV and AIDS Prevention and Control Act, 2015. - h) That he was informed by his lawyers which information he believes to be correct that a court of law cannot exercise jurisdiction that it does not have and that jurisdiction is a creature of statute without which a court has no power to render a judgement as a substantive matter that cannot be ignored.

Both parties filed their written submission to support their averments which this Court has taken into consideration in this Ruling.

## **Legal representation:**

The Applicant was represented by Counsel Florence Nalukwago of M/s Nagawa Associated Advocates while the Respondent was represented by Counsel Pheobe Tumwebaze of M/s Kian Associated Advocates.

### **Court's Analysis**

Two issues were raised by the parties for determination by this Court: -

- 1. Whether this Honourable Court is the proper forum to entertain a dispute or claim arising from HIV and AIDS testing, counselling and care? - 2. Whether the Respondent's affidavit in reply is competent?

### **Resolution**

1. Whether this Honorable Court is the proper forum to entertain a dispute or claim arising from HIV and AIDS testing and counselling and care?

# Section 5 of the Civil Procedure Act (CPA) provides that: -

"Any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred."

The question of jurisdiction of the Court is very important in determining the authority to be exercised by the Court as it was explained in Koboko District Local Government vs Okujjo Swali, High Court Miscellaneous Application No. 001 of 2016 where Court noted that: -

"One of the "policies of court" is the question of jurisdiction that it is at once fundamental and over-arching as far as any judicial proceeding is concerned. Jurisdiction is the first test in the legal authority of a court and its absence disqualifies the court from exercising any of its powers. Jurisdiction means and includes any authority conferred by the law upon the court to decide or adjudicate any dispute between the parties or pass judgment or order. A court cannot entertain a cause which it has no jurisdiction to adjudicate upon."

Jurisdiction of court is determined in three categories, namely;

(a) subject matter jurisdiction, i.e. whether the particular court in question has the jurisdiction to deal with the subject matter in question;

(b) territorial jurisdiction, i.e. whether the court can decide upon matters within the territory or area where the cause of action arose; and,

These three categories of jurisdiction are a prerequisite to the assumption of a Court's jurisdiction

## Section 4 of the CPA provides that;

"Except insofar as is otherwise expressly provided, nothing in this Act shall operate to give any court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits, if any, of its ordinary jurisdiction."

Court has stated that issues of jurisdiction are substantive and go to the core of a case and if a Court lacks jurisdiction whether pecuniary or territorial, over the subject matter, its judgment and orders however precisely certain and technically correct, are of no legal consequence and may not only be set aside anytime by the Court in which they were rendered but declared void in every Court in which they are presented. See: Gabula Benefansion Vs Wakidalu Meraso HCT Civil Appeal No.29 of 2006 (High Court at Jinja).

The jurisdiction of the High Court is premised in Article 139 of the Constitution of the Republic of Uganda as amended and Section 14 (1) of the Judicature Act Cap 13.

Article 139 (1) of the Constitution provides that: -

"The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law."

Section 14(1) of the Judicature Act also provides that: -

"The High Court shall, subject to the Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by the Constitution or this Act or any other law."

Therefore, from the above cited provisions the High Court enjoys unlimited jurisdiction in all matters unless provided for otherwise by the Constitution of the Republic of Uganda. Such exceptions are clearly provided for in the Constitution itself such as taxation matters. See Uganda Revenue Authority Vs Rabbo Enterprises (U) LTD & Anor SCCA No. 12 of 2004.

Applicant's counsel submitted to this Court that this Court has no jurisdiction to entertain Civil Suit. No. 10 of 2023 on grounds that the said jurisdiction is vested in the Chief Magistrates Court or Grade 1 Magistrate Court as provided for under the HIV and AIDS Prevention and Control Act, 2015. I vehemently disagree with this assertion.

Counsel for the Applicant referred to the preamble of HIV and AIDS Prevention and Control Act, 2015which I will reproduce below;

"An Act to provide for the prevention and control of HIV and AIDS, including protection, counselling, testing, care of persons living with and affected by HIV and AIDS; rights and obligations of persons living with and affected by HIV and AIDS; to establish the HIV and AIDS Trust Fund, and for other related matters."

Counsel for the Applicant went ahead and cited Section 1 of the HIV and AIDS Prevention and Control Act 2015 for the interpretation for the term "court" to mean a Chief Magistrate, or Magistrate Grade I court.

I did extensively read this law to ascertain if the Respondent's claim brought against the Applicant indeed falls under the said Act as submitted by the Applicant's Counsel, and thus putting the Respondent's claims under the jurisdiction of the HIV and AIDS Prevention and Control Act, 2015 thereby vesting the jurisdiction of the suit in the Chief Magistrate, or Magistrate Grade I

Part III of the Act basically is about HIV Counselling and testing whereas Part VIII of the Act is about offences and penalties under the Act. An extensive look at this Act tends to criminalize the illegal acts committed thereunder hence giving the criminal jurisdiction to the Chief and Grade 1 Magistrates Courts therein.

In the instant case, the matter before this Court is one of negligence which is tortious in nature. The case before hand is based on the Respondent challenging the alleged negligent acts on the part of the Applicant which is clearly not covered under the HIV and AIDS Prevention and Control Act, 2015.

Furthermore, there is no provision in the Constitution, the supreme law of the land, which grants the HIV and AIDS Prevention and Control Act of 2015 superiority over the High Court's unlimited original jurisdiction enshrined under Article 139(1) of the Constitution. Therefore, in matters of a civil nature which are not covered under the HIV and AIDS Prevention and Control Act, 2015, the High Court has powers to entertain all civil suits unless provided otherwise and this is buttressed by Section 11(1) of the CPA which provide that;

"Except as is provided in this Act or the Magistrates Courts Act, suits and proceedings of a civil nature shall be instituted in the High Court."

The jurisdiction of Magistrates Courts in civil matters is provided for under Section 207 of the Magistrate's Courts Act (MCA) Cap 16. However, in circumstances where the subject matter cannot be valued, Section 11(2) of the PCA provides that;

"Whenever for the purposes of jurisdiction or court fees it is necessary to estimate the value of the subject matter of a suit capable of a money valuation, the plaintiff shall, in the plaint, subject to any rules of court, fix the amount at which he or she values the subject matter of the suit; but if the court thinks the relief sought is wrongly valued, the court shall fix the value and return the plaint for amendment.'

In the case of Opendi Patrick & 16 Others Vs Kiconco Medard; High Court Civil Revision No. 33 of 2018, the Judge observed in that case that;

"The jurisdiction of court should not only be determined from the cause of action or value of the subject matter where it applies, but also from the remedies being sought from the court as well."

In this particular case, the Respondent in his Plaint in Civil Suit No. 10 of 2023 indicated in the remedies he seeks from the court general damages worth UGX 150,000,000/ $=$ . This clearly indicates the basis for bringing this suit to this Court for which it has unlimited jurisdiction. Therefore, this Court clearly has jurisdiction to hear this matter as elucidated above. This preliminary objection is accordingly overruled.

# Whether the Respondent's affidavit in reply is competent?

In this case the Applicant's Counsel raised a preliminary objection that the Respondent's affidavit in reply was incompetent as it was not commissioned by a Commissioner for Oaths in accordance with the Oaths Act and should

therefore be struck out as it was fatally defective. The Respondent argued and prayed that the said non-commissioned affidavit in reply should be cured under Article $126(2)$ (e) of the Constitution and also filed a supplementary affidavit in reply to cure the same. Counsel for Applicant argued that the supplementary affidavit in reply was not only filed out of time but that the Respondent omitted to seek leave of court to file it out of time.

In the case of Bankone Limited Vs Simbamanyo Estates Limited Miscellaneous Application No. 645 of 2020, Hon Justice Stephen Mubiru defined an affidavit as;

"An affidavit is defined as "a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath (see Amtorg Trading Corporation v. United States, 71 F. 2d 524). It is a written statement where the contents are sworn or affirmed to be true, signed in front of an authorised person. The statement usually is intended to and serves as evidence before a Court for the proper determination of factual disputes."

An affidavit must be sworn by someone who possesses knowledge of the relevant facts. This principle was upheld in the case of Namutebi Matilda vs Ssemanda Simon and 2 Others (M. AM. A No. 430/2021).

Recent judicial precedents have over the time relied on the provisions of Article 126 of the Constitution and have allowed parties to save parts of affidavits not found offensive in the name of substantive justice. (See: Col. (Rtd) Dr. Kiiza Besigye versus Museveni Yoweri Kaguta and Electoral Commission, Supreme Court Election Petition No. 1 of 2001) and Italian Ashalthaulage Ltd & 2 Ors Vs Assit (U) Ltd CA No.90 of 2000.

Courts have indicated that the "substance over form" rule in affidavits is a principle that recognizes the importance of the content and credibility of statements over minor technical errors. Rather than focusing solely on formalities, the Court gives priority to the credibility of the deponent and the reliability of the evidence presented. Corrections may be allowed if the errors do not affect the substance or credibility of the statements. This rule ensures that relevant evidence is considered regardless of specific formal requirements and prevents affidavits from being unfairly dismissed based on minor technicalities. It serves to promote fairness by prioritizing the substance of the evidence over procedural details. See Sugga v RoadMaster Cycles (U) Ltd [2002] EA 2.

In the case of Male Wilson Versus Kayondo Fred & Anor, Court of Appeal Election Petition Appeal No. 47 of 2021, the Honorable Justices observed that;

"We are in agreement with the learned counsel for the appellant's interpretation of the section 14A of Advocates Act. With great respect, we are

unable to accept the learned trial Judge's position and conclusions in the interpretation of section 14A. It was contradictory that the trial Judge impeached the affidavits sworn before a Commissioner for Oaths for lack of a practicing certificate and impeached his inability to practice as an advocate and yet in the same breath allowed equally defective affidavits by the opposite

The facts as revealed in this case re-affirm the status of the innocent-litigator remedies available as was found in section 14A of the Advocates (Amendment) Act protects innocent litigants from crooked or errant advocates. Section 14A (b) (ii) makes provision for a victim to make good any defects arising from such an event and an election petition, however urgent, cannot circumvent section 14A where its applicable. In application of section 14A, a court should not, when attention is drawn to it, proceed with defective pleadings but rather, time should be granted to the innocent litigant to rectify the error and correct, replace and file fresh affidavits. We therefore find that in the instant case, the affidavit in support of the petition had not been duly commissioned, in so far as one of the advocates who commissioned it had not renewed his practicing certificate for the year 2016. This court finds that the court ought to have allowed the petitioner proceed to under section $14A(l)(b)(ii)$ 5 and to file fresh affidavits which were in compliance with the law.

More recently in Ochwa David v Ogwari Polycarp & EC Election petition appeal No.16 of 2021, a petitioner's election petition was struck out by the high court for being incompetent and incurably defective for reason that the affidavits supporting the petition were not commissioned by a commissioner for oaths without a valid practicing certificate. This court declared that in circumstances such as those brought about by an errant Advocate, the trial Judge erred when he denied the applicant to rectify the affidavit in support of the petition in compliance with section 14A of the Advocate's Act. The court also found that a petition can stand alone and can be heard without the accompanying affidavit and that where there is an affidavit in support, it is brought in witness of and not as an integral part of the petition. Where the affidavit in support is defective, it can be struck off without affecting the petition. We find no cause to depart from the above reasoning.

We are satisfied that the appellant made an application to the trial court seeking to rectify the defect and that this application ought to have been allowed by the trial Judge. We find that the appellant was entitled to partake of the remedy provided to him under section 14A 1 (b) (ii) of the Advocates Act This court finds that section 14A does not create any time restrictions as to when an application to rectify might be made. This court is satisfied that this application was made as soon as the appellant was made aware of the defect in his pleading and ought to have been allowed, and the matter heard on its

We therefore find that the learned trial Judge erred by not following the provisions of section 14A and also erred when she disregarded the protections

granted to the appellant under section14A. Ground No. 1 & 3 of this appeal succeed.(emphasis added).

In the instant case, I am persuaded by the decision in Male Wilson Vs Kayondo Fred & Anor (Supra) by allowing the supplementary affidavit of the Respondent filed in this court on the 15th August 2023. It is a demonstration that as soon as the Respondent was made aware of the defects in his affidavit in reply, he endeavored to file a supplementary affidavit in reply in order to cure the defects of the affidavit in reply he had previously filed on the 25th day of July 2023 that was not commissioned. I am inclined in this particular case to ensure that substantive justice is done without undue regard to technicalities. This preliminary objection is accordingly overruled.

Costs shall abide the outcome of the main suit.

I so order.

Dated, signed and delivered by

FARIDAH SHAMILAH BUKIRWA NTAMBI **JUDGE** $31/1/2024$