THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION NO. 39 OF 2001
ENVIRONMENT ACTION NETWORK LTD ] APPLICANT
VERSUS
1. ATTORNEY GENERAL ]
2. NATIONAL ENVIRONMENT ] RESPONDENTS
MANAGEMENT AUTHORITY ]
BEFORE: - THE HON PRINCIPAL JUDGE - MR. JUSTICE J.H. NTABGOBA
RULING
On 10th September 2001 the Attorney General and National Environment
Management Authority (NEMA), herein to be referred to as the
applicants, filed Miscellaneous Application No. 609 of 2001 in
this Court but headed "IN the Court of Appeal of Uganda
at Kampala" but they did not accompany it with a supporting
affidavit. For the omission to accompany it with an affidavit,
Mr. Oluka has informed Court that he had inadvertently made the
omission.
With regard to the heading "In the Court of Appeal of
Uganda" which I should have thought Counsel could have verbally
applied to amend on 19/9/2001 when the application came up for
hearing, Counsel Oluka for the applicant instead made the following
application: -
"The Respondents were not served. I just discovered it
now. So it is clear we did not serve them. I also want to amend
so that the application is in the High Court and not in the Court
of Appeal". He did not apply for leave to amend. I granted
him the adjournment as applied for in the following words: -
"Hearing is adjourned to 17/10/2001".
The learned State Attorney rather than amend, went ahead to
file a fresh application for leave to appeal to the Court of
Appeal, which this time he duly accompanied with a supporting
affidavit. He filed it on 15th October 2001.
On 17th October 2001 when the application was called hearing
Mr. Karugaba Phillip, learned Counsel for the Environmental Action
Network Ltd, the respondent, raised a preliminary objection to
the effect that the application was time barred because it was
not brought within 14 days as required under Rule 39 (2) (a)
of the Court of Appeal Rules which provides that: -
"(a) Where an appeal lies with leave of the High Court,
application for the leave shall be made informally at the time
when the decision against which it is desired to appeal is given;
or failing that application or if the Court so orders, by notice
of motion within fourteen days of the decision"
My decision against which it is desired to appeal was made
on 28/9/2001 and the learned State Attorney did not then make
any informal application for leave to appeal. Of course he was
absent even though he had been notified of the date of reading
the decision. I agree with him when he argues that his earlier
application filed "in the Court of Appeal of Uganda at Kampala"
was filed within the stipulated period of 14 days, but he withdrew
it and instead of amending it, brought a fresh application, which
was filed late.
Learned State Attorney may be right when, basing on the wording
of Rule 3 of Order 48 of the Civil Procedure Rules, he argues
that his application "in the Court of Appeal of Uganda at
Kampala" was proper without a supporting affidavit. I agree
with him on that argument in view of the wording of the rule
which implies that a notice of motion not grounded on evidence
by affidavit may be proper. However, his argument seems to shoot
him in the arm when he argues that the present application is
the same as the one filed "in the Court of Appeal of Uganda…"
since the present one has a supporting affidavit. I should, in
fact mention that he had no authority to amend his application
without the leave of the Court in view of the provision of Order
VI (as amended by Statutory Instrument No. 26 of 1998) which
in Rule 19 provides that: -
"A plaintiff may, without leave, amend his plaint once
at any time within 21 days from the date of issue of summons
to the defendant or, where a Written Statement of Defence is
files, then within 14 days from the filing of the Written Statement
of Defence or the last of such Written Statements."
In this case, even assuming that the application filed "in
the Court of Appeal of Uganda…" was properly filed
and therefore amended by the one filed on 15th October 2002,
there is no sign that it was served on the respondent, although
to be fair to the applicants, the respondent must have received
the notice of motion. The point I am making, however, is that
it did neither comply with the 21 days nor the 14 days provided
in Order 6 Rule 19 (as amended by S.1 No. 26/98). And no leave
is shown to have been sought to amend.
The learned State Attorney than makes a mistake when he argues
that his application was on a point of law. His application was
to enable him to challenge this Court that it failed to refer
to an authority of the decision in the Rwanyarare petition and
that Court should have held that Misc. Application No. 39 of
2001 was a nullity in so far as the applicants therein should
have sought the permission of the Court to represent the public.
Apart from my decision that in public interest litigation
there was no need to follow Order 1 Rule 8 of the Civil Procedure
Rules, as also there was no requirement to sue under Act 20 of
1969, I see nothing being a point of law being sought to be appealed
against. I think the appeal sought was on a point of fact, namely,
the alleged failure of the Court to follow the Rules of Procedure.
But this is a by the way. The fact is that neither did the applicants
file the amendment within the stipulated period nor did they
seek leave of the Court to amend outside that period.
It is in light of the above that I struck out the application
(amendment) and promised to give these reasons in support of
my decision.
J.H. NTABGOBA
PRINCIPAL JUDGE
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