THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL APPLICATION NO. 470 OF 2001
[Arising from Misc. Application No. 39 of 2001]
JOSEPH ERYAU ] APPLICANT
VERSUS
THE ENVIRONMENT ACTION ]
NETWORK LTD ] RESPONDENT
BEFORE: - HON THE PRINCIPAL JUDGE - MR. JUSTICE J.H. NTABGOBA
RULING
This is an application by notice of motion brought by one
Joseph Eryau through M/S Byenkya & Kihika Advocates. The
application is brought on motion pursuant to Rules 5 and 7 of
the Fundamental Rights and Freedoms (Enforcement) Procedure Rules
1992, and Order 48 Rule 1 of the Civil Procedure Rules. It seeks
orders that: -
(a) This Honourable Court be pleased to give leave to the
applicant to be heard in opposition to Application No. 39/2001
between the respondent, The Environmental Action Network, Ltd
and the Attorney General jointly with the National Environment
Management Authority. Rule 5 of the Rules (i.e. S.I. No. 26/92)
permits an application of this nature. It provides that: -
"On the hearing of an application the Court, if it thinks
fit, may permit a person to be heard notwithstanding the fact
that such person has not been served with notice of motion in
respect of the application".
In his affidavit the said Joseph Eryau indicates that he is
a person who would be affected by the declarations being sought
in the Motion Application No. 39/2001. In particular, since he
depones that he is a smoker, he argues that the following two
declarations being sought would adversely infringe his rights
and freedoms:
(a) a declaration that smoking in a public place constitutes
a violation of the rights of the non-smoking members of the public
to a clean and healthy environment as prescribed under Article
39 of the Constitution of the Republic of Uganda and S. 4 of
the National Environment Statute, 1995.
(b) a declaration that smoking in a public place constitutes
a violation of the rights of the non-smoking members of the Public
to the right to life as prescribed under Article 22 of the Constitution
of the Republic of Uganda.
Mr. Eryau who deponed that for the last 20 years he has been
smoking, argues that for him smoking has been his right and a
freedom and the above and similar declarations sought would deprive
him of or violate his said rights and freedoms.
In reply Mr. Phillip Karugaba for the respondent made an oral
application for an order calling Mr. Eryau to be cross-examined
on his affidavit. In his words Mr. Karugaba doubts the existence
of Mr. Eryau whom he says could be a trojan horse. Mr. Byenkya
complained against Mr. Karugaba's surprise oral application which
he referred to as an ambush. He argued that such application
should have been brought by a notice of motion pursuant to Rule
3 S. I No. 26/92. Mr. Karugaba argued that it is permissible
under Order 17 Rule 2 of the Civil Procedure Rules to make an
oral application to call a deponent and examine him on his affidavit.
He cited the procedure in Election Petitions which are heard
on affidavits and in which oral applications are admissible.
Mr. Kakuru in support of Mr. Karugaba referred in particular
to such procedure having been followed in the Presidential Election
Petition No. 1 of 2001 - Retired Col. Kizza Besigye -vs- Yoweri
K. Museveni. I was also referred to the decision in Bawa (D.D.)
Ltd. -vs- Singh (G.S. Didar) [1961] E.A. 282.
Whereas I agree Bawa (D.D) Ltd. -vs- Singh (G.S.) Didar decided
that an application to amend may be made orally, thing had nothing
to do with an application to call a deponent to be cross-examined
on his/her affidavit. But I do not agree with Mr. Byenkya that
there would be any miscarriage of justice if Court ordered his
client to appear in Court and be examined on his affidavit by
the mere fact that the order was given on an oral application.
I do not agree that the application is an ambush at all and that
a formal application is necessary to build up a case for the
necessity of cross-examining a deponent who is alleged to have
sworn an affidavit and has not appeared in Court to be identified.
I do not agree either that Rule 3 of S. I. No. 26 of 1992 and
Rule 2 of Order 17 of the Civil Procedure Rules are mutually
exclusive. On the contrary, they are made complementary by Rule
7 of the Statutory Instrument. I would, in the circumstances
order, as applied for, that Mr. Joseph Eryau appears in Court
for cross-examination on his affidavit. His Counsel, if they
required a notice, this is sufficient.
I order accordingly. He will appear on 24/10/2001
J.H. NTABGOBA
PRINCIPAL JUDGE
20/09/2001
Present in Chambers when the Ruling is read are: -
Mr. Andrew Kasirye for the respondent and Mr. Innocent Kihika
for the Applicant.
In the presence of Mr. Edward Kangaho, Court Clerk.
J.H. NTABGOBA
PRINCIPAL JUDGE
20/09/2001 |
