[2023] UGHCCD 105

# **THE REPUBLCI OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL HCT -01 – CV – CS NO. 0039 OF 2010 (ARISING FROM HCT – 01 – CV – MA – 0095 OF 2009)**

# **1. KIIZA LUUKA**

# **2. YEREMIA NGWASA**

- **3. MWEBYA BISANGO :::::::::::::::::::::::::::::::::::::PLAINTIFFS** - **4. ALOZIYO WAMARA** - **5. KYAKIMWA REGINA**

# **(SUING AS REPRESENTATIVES OF 478 OTHERS)**

## **VERSUS**

# **1. UGANDA WILDLIFE AUTHORITY**

**2. ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::DEFENDANTS**

# **BEFORE HON. JUSTICE VINCENT WAGONA RULING ON A PRELIMINARY POINT OF LAW**

#### **Background**

**1.** The Plaintiff instituted civil suit no. 0039 of 2010 against the 1st Defendant in 2010 and by way of amendment in 2019 against the 2nd Defendant jointly and severally seeking: a declaration that the Plaintiffs are the owners of the suit land located at Kyabatukura Village, Rugendabara Parish, Kitswamba Sub County, Kasese District; a permanent injunction restraining the Defendant's agents from further interfering with the Plaintiffs occupation of the suit land; an order for payment of compensation


of UGX 200,000,000/= to the Plaintiffs for their lost property; an order that the Defendants pay the Plaintiffs general damages at an interest of 24% per annum from the date of the judgment till full payment; and costs at an interest rate of 24%.

- **2.** The 1st Defendant denied the Plaintiffs' claims and indicated under paragraph 4 of the Written Statement of Defense that they would raise a preliminary point of law to the effect that the suit was barred by limitation. The 2nd Defendant also denied the Plaintiffs' claims and contended under paragraph 2 of the written statement of defense that they would raise a point of law to the effect that the suit discloses no cause of action, is frivolous and vexatious and thus barred by statute. - **3.** When the suit come for up for hearing, Counsel for the 1 st and 2nd Defendants intimated to court that they had preliminary points of law to raise which had the effect of disposing of the suit. Both of parties filed written submissions which I have considered.

# **Representation**

**4.** Mr. Wahinda Enock of M/s Ahabwe James & Co. Advocates appeared for the Plaintiffs while Mr. Abubakar Ibrahim an in house counsel appeared for the 1 st Defendant and Racheal Atumanyise a State Attorney of the Attorney General's Chambers appeared for the 2 nd Defendant.

## **Issues**

- **5.** The issues have been identified as follows: - (i) Whether the Plaintiff complied with the requirements under Order 1 rule 8 of the Civil Procedure Rules.


- (ii) Whether the Civil Suit No. 0036 of 2010 is barred by limitation. - (iii) What remedies are available to the parties?

# **6. Issue one: Whether the Plaintiff complied with the requirements under Order 1 rule 8 of the Civil Procedure Rules.**

## **Submissions of the 2nd Defendant:**

- **7.** It was submitted for the 2 nd Defendant that the Plaintiffs did not comply with Order 1 rule 8 of the Civil Procedure Rules. That under rule 8 of order 1, where a suit is brought in a representative capacity, a representative order must be obtained prior to filing of the suit. That the said order must be served upon the persons to be represented by way of public advertisement as the court may direct. - **8.** Counsel cited the case of **Ibrahim Bumwembo& others Vs. UTODA HCCS No. 664 of 2003** where the Hon. Justice Geoffrey Kiryabwire (High Court Judge as he then was) observed that: "..*It would appear to me that the wording of O.1 rule 8 with regard to notice either by personal service or by public advertisement as the court may in each case direct is mandatory. Furthermore, the requirement to give proper notice cannot be regarded as a mere technicality or direction that can be dispensed with. The notice by public advertisement must disclose the nature of the suit as well as the reliefs claimed so that interested parties can go on record in the suit either to support the claim or to defend it*." - **9.** Counsel further cited the decision of the Hon. Lady Justice Nakintu Victoria Nkwanga Katamba in HCMC No. 001 of 2021, Mugisha Enos& 7 others Vs. Kyotera District Land Board where it was held that: "….*having found that the intended parties share the same interest, the next step is for notice to be issued to*


*all parties from whom the suit is intended to be brought. Each of the persons whose names are on the list attached to the application should be served with the notice of institution of the suit in accordance with Order 1 rule 8 of the Civil Procedure Rules. That the notice of institution of the suit should b served by public advertisement and must contain the following; notice should mention all the persons who intend to bring the representative suit, the notice should also clearly disclose the nature of the suit, the reliefs sought and the claims should be clearly stated.."*

- **10.** It was submitted that the documents submitted by Counsel for the Plaintiffs' Counsel had included a representative order. That the order was granted authoring the applicant to represent 477 others and the order was to be published in an English Newspaper of wide circulation in Uganda. That the news extract presented by the Plaintiffs' Counsel shows that the advert was run in 2022 as an afterthought and as a ploy to defeat the 2nd Defendant's preliminary point of law and thus occasioned a miscarriage of justice to the 2nd Defendant. - **11.**That further the number of people to be represented was not listed and therefore there was noncompliance with rule 8 since they were not notified and not granted an opportunity to consent to the institution of the suit. - **12.** Counsel cited the case of **Kasozi Joseph & others Vs. Umeme (U) Ltd, HCCS No. 188 of 2010**, where the Hon. Lady Justice Obura (High Court Judge as she then was) held that: "..*I wholly agree with the submissions of counsel for the Defendant that the list of all such persons should have been advertised in the newspaper so as to enable them respond in accordance with rule 8(2) of order 1. … No intended Plaintiff could be said to have been informed about the intended institution of the suit when no specific name was mentioned. I find that failure to list the intended*


*Plaintiffs whatsoever the number contravened Order 1 rule 8 and the effect is fatal in that no notice was actually given to them as required under the rules. I believe the rules committee by including rule 8(2) of order I could not have intended that such blanket notice that do not name any person would amount to proper service of the notice for purposes of enabling any of them to apply to court to be made a party to a suit. I find this an unacceptable situation where spirited persons purport to represent a group of persons without their knowledge and consent.*

- **13.** It was submitted that no effective notice was given to the intended Plaintiffs and consequently order 1 rule 8 was not complied with. That the five Plaintiffs do not have the required capacity to represent the other 477 in the suit brought against the Defendants. That the essence of an advert is to cure the discrepancies in the actual number of Plaintiffs in a representative suit. That the applicant sought to represent 477, however, the amended suit has 478 and the scheduling memorandum has 54 persons. That these inconsistencies cause doubt, uncertainty and confusion to court in the determination of this suit as to liability and benefit of the parties concerned. - **14.** It was further submitted that the failure to comply with the requirements under Order 1 rule 8 is not a procedural issue but a substantive one where none compliance renders the suit defective. Counsel cited the case of **Olweny Patrick Vs. Oyoo Lungino& 3 others, High Court Civil Appeal No.032 of 2018** and **Makula International V His Eminence Cardinal Nsubga & Anor [1982] HCB 11**. It was contended that this is an illegality which renders the suit defective. Counsel thus prayed that point of law be upheld and suit be consequently dismissed with costs.

**Submissions of the Plaintiffs:**


- **15.** In reply learned Counsel for the Plaintiffs contended that in Misc. Application No. 0095 of 2009, the order was that notice was to be given through an advert in English Newspapers and this was complied with by the Plaintiffs who advertised the notice in English and copies of the newspapers are on record and as such the Plaintiff complied with order 1 rule 8. - **16.** Learned Counsel further contended that order 1 rule 8 does not state the timeline within which to comply with the requirement to advertise. That court should be pleased to adopt the advert. - **17.** It was pointed out that the Plaintiffs had instructed different lawyers over time and as such, the omission to advertise was a mistake by their advocate that should not be visited upon the Plaintiffs. That the omissions should be treated as a technicality. - **18.** That if the court wishes that the advert should name all the intended Plaintiffs, the court can proceed under Section 98 to order for a fresh advert. Counsel thus asked court to overrule the point of law by the 2nd Defendant.

## **CONSIDERATION BY COURT:**

**19.** Order 1 rule 8 (1) of the Civil Procedure Rules provides for where one person may sue or defend on behalf of all in same interest and states as follows:

(1*) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend in such suit, on behalf of or for the benefit of all persons so interested. But the court shall in such case give notice of the institution of the suit to all such persons either by personal*


*service or, where, from the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct.*

*(2) Any persons on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) of this rule may apply to the court to be made a party to that suit.*

- **20.** Rule 8 (1) of order 1 is to the effect that several persons who claim the same interest in one suit, one or more of such person may with permission of court sue or defend a suit on behalf and for the benefit of all person interested. The permission alluded to is by way of a representative order issued by court authorizing such persons to sue on behalf of others. - **21.** After such order is issued, notice of institution of the suit must be given to such persons either by personal service or by way of a public advertisement in the event personal service is not reasonably practicable. By inference, personal service connotes giving notice in person to all persons on whose behalf a suit is to be instituted or defended. Where personal service is not practicable, then the notice must be by an advert in the newspapers. - **22.**The rules do not explicitly state that all the names of persons to be represented must be advertised. However, it is inferred from the said rule that every person to be represented must be served and therefore, it is plausible to deduce that the names of such persons should be published in the newspapers for them to have knowledge that a suit is to be instituted on their behalf so that those who wish to withdraw from the suit or join can make any such representations to court as they may deem necessary. The main import of this requirement is to avoid scenarios for example,

 where parties may find it desirable or convenient to dissociate from the suit by raising excuses of lack of knowledge of the suit and the lack of an opportunity to be heard; or parties prosecuting cases without the consent of the others and exposing them to the associated risks of litigation such as payment of costs and executions against them.

- **23.** I therefore agree with the decision of **Kasozi Joseph & 4 others Vs. Umeme (U) Limited, HCCS No. 188 of 2010** that the names of all such persons to be represented under order 1 rule 8 must be listed in the newspapers so that they can respond in accordance with rule 8 (2). - **24.** Order 1 rule 8 does not state the consequences of none compliance with service as provided for under rule 8 (1) of the Civil Procedure Rules. I am guided by Section 98 of the Civil Procedure Act that provides for the inherent powers of the High Court and states as follows: *"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."* I believe the court when exercising its inherent powers would consider what would be the just decision to take in all the circumstances of each particular case. I am also alive to Section 33 of the Judicature Act that provides for the need to grant remedies that guard against generating multiplicities of legal proceedings. Further, Article 126 (2) (e) the Constitution requires me to administer substantive justice without undue regard to technicalities. - **25.** In this case the Plaintiffs obtained a representative order on 2 nd day of February 2010 to represent themselves and 477 others persons. The list of the other 477 is ascertainable from the record with majority appending their signatures against their


names. I find that the failure to advertise the order in time and/or the omission to list the names or all the names of all persons on whose behalf Civil Suit No. 0039 of 2010 was brought is curable by re-advertisement and this would cause no injustice to any party. I therefore, in the interests of substantive justice, overrule this preliminary objection on point of law.

## **Issue Two: Whether the Civil Suit No. 0036 of 2010 is barred by limitation.**

## **Submissions of the 1st Defendant:**

- **26.** Learned Counsel for 1 st Defendant raised another preliminary point of law contending that the suit brought by the Plaintiff is barred by limitation. Counsel contended that the Plaintiffs' tort of damage to property against the 1st Defendant was barred by limitation. That in the amended plaint, the Plaintiffs sought to recover a sum of UGX 200,000,000/= as compensation for lost property as a cause of action. That in paragraph 5 (d), of the plaint reveals that the cause of action arose in 2001 but paragraph 5 (g) purports to show that the cause of action arose in 2009. - **27.** It was pointed out that section 3(1) of the Civil Procedure and Limitation (Miscellaneous) Provisions Act Cap 72 provides that no action founded on tort shall be brought against the government; a local government or a scheduled corporation after the expiration of two years from the date on which the cause of action arose. It was submitted that this position was confirmed by court in **Isma Hakiri & 2 others Vs, Attorney General & 31 others Civil Suit No. 0043 of 2004 and Mathias Lwanga Kaganda Vs. Uganda Electricity Board HCCS No. 124 of 2003.**


- **28.**That the 1st Defendant being a scheduled corporation established under the Uganda Wildlife Act Cap 200 and Wildlife Act 2019 is prejudiced by the claim of compensation whose cause of arose 8 years ago contrary to the law. That whereas there are exceptions under Section 3, the Plaintiffs did not plead the exceptions from limitation and their failure clearly put their case within the operation of Section 3 rendering it barred by limitation. - **29.**Learned Counsel submitted relying on the case of **Benard Tumuhimbise & 3 others Vs, Attorney General and Uganda Wildlife Authority HCCS No. 778 of 2003** that it was established law that a suit barred by limitation must be rejected because it is no suit at law and no remedy can flow therefrom. That the same position was restated in **Onesiforo Bamuwayira & 2 others Vs. Attorney General (1973) HCB 87**. The court was thus invited to dismiss the suit with costs to the 1 st Defendant.

## **Submissions of the Plaintiffs:**

**30.** In response learned Counsel for the Plaintiffs contended that the cause of action arose in 2009 and not 2001 as alleged by the Plaintiff as such the suit is not barred by limitation.

## **CONSIDERATION BY COURT**

**31.** The court in determining whether a suit is barred by limitation or not, considers the whole plaint and the dates pleaded by the Plaintiff as to when the cause of action arose. The dates pleaded by the Plaintiff should be considered in computation of


time **(See Lakwo Roy & Anor Vs. Santa Sarah Ochen, Civil Appeal No. 0086 of 2018).**

- **32.** The Plaintiff stated in paragraph 5 (d) (e) (f) & (g) of the amended plaint that: *That without any claim or right the game wardens and game rangers being agents of the 1 st Defendant sometime in 2001 attacked the Plaintiffs in their homes and in fact some people were injured and others lost their lives. The Plaintiffs were evicted and driven away from their pieces of land. The Plaintiffs complained to various authorities and investigations commenced and the agents of the 1st and 2nd Defendants convened several meetings with the Plaintiffs and their representatives and it was found that the Plaintiffs had been wrongfully evicted and that their properties had been wrongfully destroyed and they were invited to re-occupy their land. The Plaintiffs re-occupied their respective pieces of land after getting assurance that they were going to be compensated for being disturbed but in 2009, game wardens and game rangers, policemen and prison officers came back and told them to leave and the land claiming that it was government land and the Plaintiffs were again evicted and their properties over shs 200,000,000/= were destroyed and what followed were several meetings and negotiations between various officers and departments of government to resettle the Plaintiffs which have not yielded fruit as the Plaintiffs are still camped at Kitswamba sub country and living very abominable conditions when their land is available.* - **33.** It is ascertainable from the above facts that 2001 is not claimed by the Plaintiffs as the year when the cause of action that led to loss of property worth UGX 200,000,000/- occurred. The Plaintiffs merely gave a factual event on how they were evicted at first in 2001 and later allowed to re-occupy the land and in 2009, game


wardens and rangers, police and prison evicted them from the suit land leading to loss of property approximated at a sum of UGX 200,000,000/=.

- **34.** It is ascertainable from paragraph 5 (g) of the amended plaint that the cause of action that led to loss of property worth UGX 200, 000, 0000/= that is the subject matter of this suit, is stated to have arisen in 2009 and not 2001. - **35.**I find that the cause of action is taken to have arisen in 2009 and the suit was instituted in 2010 within the two years provided for under Section 3 (1) of the Civil Procedure and Limitation (Miscellaneous) Provisions Act Cap 72. I find that the suit is not barred by limitation. I therefore find no merit in the preliminary objection on point of law contending that the suit is barred by limitation and it is overruled. - **36.**I therefore find no merit in both preliminary points of law and the same are overruled. The court makes the following orders: - **1. The Plaintiffs shall advertise the representative order and full list persons represented by the Plaintiffs in Civil Suit No. 0039 of 2010 in a newspaper of wide circulation and file a copy thereof in court within 30 days from the date of this ruling.** - **2. That each party shall bear its own costs.** - **3. The case is accordingly fixed for mention on 5.6.2023 for further directions.**

**It is so ordered.**


Vincent Wagona


**High Court Judge FORT-PORTAL 17.04.2023**