[2024] UGHC 608

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MBALE

CIVIL SUIT NO. 002 OF 2013

- SIMON NASAWALI - MAFABI KHALIFAN - MALIKO NANJUKI - 4. WILLIAM MAKYERI - 5. BUMALI WOGOLI - 6. LOYCE NABUKYAWO

#### 7. AIDAH MUGIMBA 10

8. LOYCE NABUKYABO & 215 OTHERS ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. UGANDA WILD LIFE AUTHORITY - 2. ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::: 15

### **RULING**

# BEFORE: HON. LADY JUSTICE MARGARET APINY

#### Background

The Plaintiffs instituted a representative suit on their behalf and behalf of 215 others against the 1^st and 2^nd defendants jointly and severally for compensation for loss occasioned by the destruction of crops and property, exemplary damages, permanent injunction, a declaration that the plaintiffs are bonafide occupants and or customary owners of the suit land and costs. They pleaded in the alternative but without prejudice to the foregoing for compensation and resettlement of the plaintiffs.

$\mathsf{S}$

- The plaintiffs' cause of action against the defendants are that at all material times, the 25 plaintiffs have been owners and bonafide occupants of the land in Bubyangu sub-county in Mbale district. The plaintiffs were born and have lived on the suit land since then. That the plaintiffs live on the suit land and use it for growing food, for cash and subsistence and have homes on the suit land. - That between 15^th and 17^th July 2012, workmen, rangers, servants and employees of the 30 1^st defendant together with uniformed and armed men of the Uganda People's Defence Forces unlawfully, wrongly and forcefully without notice or compensation entered the plaintiffs' land and homes in the villages of Bunamoli, Bumasifwa, Bumudui, Maleka and Nando in Bubyangu sub-county in Mbale district and maliciously cut down and destroyed property, food and cash crops worth millions of shillings and converted some to their use. 35

As a result of the unlawful and wrongful actions of the defendants, the plaintiffs have suffered loss and injury. The plaintiffs therefore seek a declaration that the plaintiffs are customary owners and or bonafide occupants of suit land, a declaration that the defendants are trespassers on the suit land, the defendants pay compensation for damages and loss caused to the plaintiffs, general damages for trespass, special damages, permanent injunction, or in the alternative, prompt and adequate compensation and costs of the suit.

The defendants in their respective Written Statements of Defense denied the liabilities and contended that the plaintiffs shall be put to strict proof.

Representation 45

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At the hearing of the suit, Mr. Nappa Geoffrey together with Ms Nambuya Z appeared for the Plaintiffs while Mr. Luzinda Ali appeared for the 1st defendant and Mr. Olocho Isaac State Attorney appeared for the 2^nd Defendant.

When this matter came up for hearing on 8^th of February 2023 counsel for the 1^st defendant invited court to establish whether order 1 rule 8 of the Civil Procedure Rules was complied with by having the representative orders issued by court advertised in a newspaper of wide circulation. Counsel for the plaintiffs undertook to cross check the same and confirm at the next hearing date of 23^rd August 2023.

When the matter came up on 23^rd of August 2023 counsel for the plaintiffs informed court that the former counsel had advertised summons to file defence as directed by court. He sought for more time to cross check whether the representative order had indeed been advertised since the plaintiffs had instructed several lawyers in the matter, he probably being number nine (9). This matter was adjourned to 22^nd November 2023

When it came up on 22^nd November 2023 counsel for the plaintiffs in his brief to court, confirmed that Mr. Olubwe Magellan, the former counsel for the plaintiffs had complied with the 2^nd order of court in Misc. Application No. 182 of 2012 by advertising the summons to file a defence as directed in accordance with order 1 rule 8. In counsel's view, court gives directions to a party seeking leave to advertise in the manner court has directed.

Counsel pleaded with court to take cognisance of the fact that this is a land matter which stretches back to 2013 and involving peasants who were represented by counsel they 65 believed did the right thing. He prayed that in the interest of justice, the negligence of former counsel who instead of advertising the order advertised the summons to file a defence should not be visited on the litigants who are ignorant of court processes.

Counsel was of the view that this court be pleased to administer substantive justice in accordance with article 126 (2) (e) of the constitution since the defendants have kept quiet 70 since 2013. He invited court to grant leave to have the orders advertised and the matter determined on merit. In conclusion, counsel prayed for leave of this court to have the representative order advertised since this is a land matter which ought to be determined on merit.

#### Preliminary Objection 75

Counsel for the 1^st defendant in response challenged by way of a preliminary objection the mode of presentation of the representative order issued to the plaintiffs by this Honorable court, which he claims was not in compliance with order 1 rule 8.

$\mathbf{M}$

According to counsel for the 1^st defendant what was served upon him was a copy of what looked like a newspaper containing a summons to file a defence issued to both defendants in the instant case. It was his contention that what ought to have been advertised is the representative order issued by this court with a list of all the plaintiffs in this matter.

What was done in his view does not conform with order 1 rule 8 of the Civil Procedure Rules which emphasizes publication of a representative order and the list of plaintiffs in the newspaper.

Counsel for the 1^st defendant further contended that order 1 rule 8 is couched in mandatory terms and must be fully complied with. He cited the authority of Tarlogan Singh vs Jaspal Phaguda & others, 1997-2001 UCLR,408 cited in Kasozi Joseph & others vs UMEME, HCCS No. 188 of 2010, where it was held that failure to comply with order 1 rule 8 of the Civil Procedure Rules renders the suit incurably defective.

He thus prayed that the suit be dismissed with costs.

Counsel for the plaintiffs sought leave of court to file his submission in rejoinder by close of business the next day, 23rd November 2023 which for some unexplained reasons did not materialise until 23^rd February 2024, with additional submissions in rejoinder being filed on 8^th April 2024.

In his submission in rejoinder counsel submitted that should court be inclined to agree with the 1st defendants' counsel, this court be persuaded with the reasoning in the case of Kasozi Joseph & 3 others vs UMEME Ltd, HCCS No. 188 of 2010 at page 14, which struck off the list of plaintiffs not advertised and proceeded only with 4 plaintiffs and strike off the 215 others and proceed to hear the matter between the named 9 plaintiffs and the defendants.

Counsel further submitted in his additional submission in rejoinder filed on 8^th April 2024, that this court can exercise its discretion under sections 98 of the Civil Procedure Act and 33 of the Judicature Act and order fresh advertisement of the orders. He relied on the case

$\Lambda$

of Kiiza Luka & others vs Uganda Wild Life Authority HCCS No. 39 of 2010, which in his 105 view is on all fours in support of his contention.

#### Consideration of Court

The gist of the point of law in this matter is to the effect that the suit is bad in law for the plaintiff's failure to advertise the representative order issued by court.

Order 1 rule 8 of the Civil Procedure (Amendment) Rules provides, 110

- (1) "A person may institute a representative suit on behalf of all plaintiffs or all defendants, as the case may be, who have the same actual and existing interest in the subject matter of the intended suit, for the benefit of all" - (2) "An application for a representative order shall be made by an intending plaintiff or defendant who intends to represent all plaintiffs or all defendants for the benefit of all as the case may be, who have the same actual and existing interest in the subject matter of the intended suit"

It is evident that a party seeking to bring a suit under order 1 rule 8 must seek the authority of court before instituting the proceedings and such authority once granted ought to be served on the persons on whose behalf the suit is intended to be instituted. In that respect, order 1, rule 8 (4) of the Civil Procedure (Amendment) Rules provides;

"Subject to sub rule (2), 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 may in each case direct"

It would seem from the wording of the above subrule, that a duty is imposed on court to ensure that notice is given to all persons by personal service or public advertisement. However, it would appear that courts have always issued directives to parties to issue such notices.

In the instant case, according to the proceedings of 16^th October 2012, whereas the court 130 granted an order authorising applicants to institute a representative suit and also directed that the suit be published in a widely circulating daily newspaper for the notice of the representation in the suit and a copy of the same be put on the court record, the wordings of the exparte order in Misc. Application No.182 of 2012 endorsed on 27^th November 2012 states otherwise. The impugned order reads thus:

This application coming up for hearing before Her Worship Mrs. Gladys Nakibuule Kisekka, Honourable Deputy Registrar, in the presence of the applicants and Mr. Magellan Olubwe their counsel and in the absence of the respondents IT IS HEREBY ORDERED that: -

- 1. The nine applicants above namely; Simon Nasawali, Mafabi Khalifan, Maliko 140 Nanjuki, William Makyeri, Bumali Wogoli, Loyce Nabukyawo, Aidha Mugimba, Loyce Nambozo, Loyce Nabukyabo, do represent the 218 applicants in the suit against the respondents and in all applications made thereunder. - 2. A copy of the Summons to file a defence be served upon the other applicants 145 by publication in a newspaper of wide circulation and copies thereof be put on the court record. [Underlined for emphasis]

In the case before this court, what was placed on record is clearly an advert of summons to file a defence as per the second limb of the order of court issued on 27^th November 2012 and not an order to institute the representative suit.

It is clear that in a representative suit, what is required under order 1 rule 8 (4) to be advertised is orders granting applicants the authority to institute proceedings on behalf of the other plaintiffs. As rightly contended by counsel for the 1^st defendant and according to the case of Kasozi Joseph & 4 others Vs. Umeme (U) Limited (supra), the names of all such persons to be represented under order 1 rule 8 must be listed in the newspapers so

$\mathsf{L}$

that they can respond to the advert where need be. It is evident that the applicants /plaintiffs did not comply with order 1 rule 8 (4) of the Civil Procedure Rules.

However, whereas I agree with counsel for the defendants that order 1 rule $8(4)$ is couched in mandatory terms, I reiterate my understanding that the rules seem to impose the duty to give notice on court rather than on the parties to a suit. Courts simply issue orders by invoking section 98 of the Civil Procedure Rules to have the orders published, which orders are directory in nature.

In the instant case, it is evident that the confusion thereof was occasioned by the wordings of the order, under clause 2 duly extracted by M/s Magellan Olubwe & Co. Advocates which order required that a copy of the Summons to file a defence be served upon the other applicants by publication in a newspaper of wide circulation and copies thereof be put on the court record. To that extent, the order in itself appears vague in setting.

Though an order was issued for the applicants to publish the order, I have observed that the litigants herein took all the steps required of them by availing themselves before court at the time of hearing of the application, but they were only let down by their counsel who advertised a copy of the summons to file defence instead of the representative order.

I do take cognizance of the fact that the applicants are not conversant with matters of the law to be able to distinguish between summons to file defence and representative order, hence the responsibility to ensure that the right document is published is borne on counsel and not the litigant. The law is settled that mistake of counsel should not be visited on the

litigants. (See <u>Banco Arabe Espanol -v- Bank of Uganda, SCCA No. 8 of 1998.</u>)

To that extent, this court is alive to article 126 (2) (e) of the constitution which enjoins this court to administer justice without undue regard to technicalities. Given that this is a land matter involving 224 plaintiffs in total who are alleged to have a right of enjoyment over the same and the defendants who are alleged to hold for wildlife in public trust, this court is of the view that such a matter must be heard and determined on its merit if it is

demonstrated that the default on the part of the plaintiffs does not prejudice the defendant in any way.

In any case, I note that this matter is still in its initial stages whereby scheduling has not even commenced, hence the defendants will not be prejudiced in any way. In view of the above, I find no merit in the preliminary objection and overrule it accordingly.

This court therefore issues the following orders: -

- 1. The plaintiffs are to publish the representative order and the list of the 215 persons represented by the plaintiffs Civil Suit No.0002 of 2013 in a daily newspaper of wide circulation within one month from the date of the ruling. - 2. A copy of the advertisement should be filed in this court within two weeks from the date of publication and a copy served on the defendants. - 3. Costs to be in the cause.

This suit is accordingly fixed for mention on the 27^th of August 2024 at 11:30 am.

latu ..........day of ................ June.................... Dated at Mbale this ....................................

**Margaret Apiny JUDGE**

195