UGANDA MARTYRS UNIVERSITY NKOZI

NAME: NYINOMUNTU ANNET

REG.NO: 2019-B411-12400
COURSE UNIT: CIVIL PROCEDURE I
YEAR/SEMESTER: 3RD /2ND
LECTURER: MR. BAKULUMPANGI
KEVIN

Question

In Karamoja sub-region, the residents of Nabilatuk are facing a grave problem. The
mining company- Mujib Minerals Company Limited obtained and took over land
measuring 2 square miles to begin marble mining. In the process, village residents
were displaced, their houses were burnt down and their crops destroyed. On reaching
the company premises, the gate keeper, informs them that the land was given to them
by the president and the residents should go away immediately or he shoots them.
Some of the leaders are proposing to deal with the company by attacking in the night.
You later find out that this company is owned by Hajji Mujid but also the Ministry of
Energy and Mineral Development is listed as the majority shared holder of the
company. You are contacted as the legal counsel to assist the people to obtain
justice. How do you proceed?

The facts.

In Karamoja sub-region, the residents were displaced, their houses were burnt and
their crops destroyed by Mujib-Minerals company Limited that obtained and took
over their land. On, reaching the company premises, they were told by the gate keeper
that the land was given to them by the president. This company is owned by Hajji
Mujid and the Ministry of Energy and Mineral Development being the majority
shareholder.

The issues.

1. Whether arbitration as an alternative dispute resolution method is applicable

2. Whether it is proper to issue a notice of intention to sue as well as a statutory

notice.

3. Whether to proceed with a plaint

4. Whether Hajji Mujid can be sued on behalf of Mujib-Minerals Company Ltd

5. Whether there is any remedy available.

Resolutions of the issues.

Issue 1

According to the Uganda Civil Justice Bench Book, arbitration arises from the
parties’ agreement where they expressly agree to resolve any likely dispute. However,
according to the facts in this case, arbitration is unapplicable since the residents have
already been displaced, their crops destroyed and their houses burnt.

Issue 2
The notice of intention to sue contains a summary of the facts leading to the cause of
action, a warning to settle a matter within a given period of time or face court action
and is a matter of good practice to issue a statutory notice as it is an element of the
right to a fair hearing as seen under Article 28 of the Constitution of the Republic of
Uganda.
The notice of intention to sue contains a summary of the facts leading to the cause of
action, a warning to settle a matter within a given period or face court action and is a
matter of good practice to issue the notice as it is an element of the right to a fair
hearing as seen under article 28 of the Constitution of the Republic of Uganda.
The notice of intention to sue contains a summary of the facts leading to the cause of
action, a warning to settle a matter within a given period or face court action and is a
matter of good practice to issue the notice as it is an element of the right to a fair
hearing as seen under article 28 of the Constitution of the Republic of Uganda.

In the case of Wambugu v Public Service Commission [1972] EA 296, it was noted
that notice of intension to sue should be given in all cases unless the plaintiff’s
interests are likely to be harmed by it. Therefore, I will proceed to issue a notice of
intension to sue the company of Mujib Minerals Company Limited

I will then issue a statutory notice to the Attorney General.

Civil Procedure and Limitations (Miscellaneous Provisions) Act Cap 72 must be read
in conformity with article 274 of the Constitution to give equality to all persons before
the law. In the case of Kabandize and twenty others v. Kampala Capital City
Authority C. A. Civil Appeal No. 28 of 2001, it was decided that the requirement to
serve statutory notice against government, local governments or scheduled
corporations is no longer a mandatory requirement in the view of article 274 on
modification and article 20 of the 1995 Uganda Constitution on equality. The Civil
procedure and Limitation (Miscellaneous Provisions) Act was read with modifications
to dispense with special treatment of government as a litigant. Non- compliance with
the notice does not render the suit incompetent. Furthermore, in the case of Dr.
Rwanyarare v Attorney General (constitutional petition No.3 of 2002) and
Greenwatch v Uganda Wildlife Authority (Misc Application No. 92 of 2004), court
held that where rights and freedoms of people are being infringed or about to be
infringed and there is need for court to take pre-emptive action in order prevent or
forestall damage from the alleged violations the requirement of the statutory notice
cannot apply.

Issue 3
A cause of action is defined as every fact which is material to be proved to enable the
plaintiff succeed or every fact which if denied, the plaintiff must prove in order to
obtain a judgment. (Cooke vs Gull LR 8E.P 116, Read v Brown 22 QBD P.31). It is
disclosed when it is shown that the plaintiff had a right, and that right was violated,
resulting in damage and the defendant is liable. This position has been reiterated in
the Supreme Court decision of Tororo Cement Co. Ltd v Frokina International
Limited SCCA No.2 of2001 where the question of whether a plaint discloses a cause
of action must be determined upon perusal of the plaint alone together with anything
attached so as to form part of it. However, Relying on the decision in Uganda
Transport Co. Ltd. v Count de la Pasture (3) (1954), 21 EACA 163, it was held
that: “ where a plaint endorsed for summary procedure contains claims correctly
endorsed and other claims, the court may, by O.33 rule 3 to rule 7 and 10, deal with
the claims correctly specially endorsed as if no other claim had been included therein
and allow the action to proceed as respects the residue of the claim, the court having
no power under O.33 to strike out any part of the claim but being unable to give
summary judgment for any relief not within the scope of O.33 rule 2 aforesaid.”
According to article 26(1) of the Constitution of the Republic of Uganda, 1995,
which guarantees every person a right to hold property, such property can only be
alienated by the state upon prompt payment of fair and adequate compensation prior
to the taking of possession.  The procedure of compulsory land acquisition is well
elaborated under the Land Acquisition Act Cap 226.  None of these laws were
complied with despite the Hon. Ministers’ orders having a characteristic of alienating
the suit land in the favour of the said occupants.

Issue 4

Mujib-Minerals Company Limited is an incorporated company which makes it a

separate legal entity from its share holders and therefore cannot be sued for the
mistakes of the companies. In the cases of Salomon v salomon & Co Ltd (1897) A.C
22 HL, Lee v Lee Air Farming Ltd and Sentamu v UBC [1983] 59, it was held that
individual members of the company are not liable for the company’s debts. In
Salomon’s case (supra), the court of appeal stated that the company is at law a
different person altogether from its subscribers to the memorandum of association and
though it may be that after the incorporation, the business is precisely the same as it
was before and the same persons are managers and the same persons receive profits,
the company is not in law the agent of subscribers or trustees for them nor are
subscribers as members liable in any form or shape except the extent and in the
manner provided by the Act. Due to this therefore, in order to impute liability on the
directors of the company, the corporate veil has to be lifted. According to section 20
of the companies Act 2012, the jurisdiction to lift the corporate veil of a company is
vested in the high court. It states that “the high court may where a company or its
directors are involved in acts including tax evasion, fraud or where save for a single
member company falls below the statutory minimum lift the corporate veil.”
However, in the case of W. E. Kiwalabye v Uganda Commercial Bank & Anor
1994 IV KALR 8, Justice Kato stated that “before the veil can be lifted, there must be
some facts from which the court can draw a conclusion that the company and
particular individual are one and the same thing.”

Issue 5

Punitive damages:
As stated in Esther Kisaakye v Sarah Kadama CS No.194 2013 if court finds the
opinions about the plaintiff were not true, and the defendants fail to prove the
allegations against the plaintiff to be true, it would be was reckless and could be
repeated.  As such the defendant should be punished. And court will grant sufficient
punitive damages to punish the defendant.

The Law Applicable

1. The 1995 Uganda Constitution as amended

2. Case law
3. Civil procedure Rules SI 71

4. Companies Act 2012

5. The Uganda Civil Justice Bench Book

6. Land Acquisition Act Cap 226