Qn.

3
Brief facts
A group of 25 people own individual bibanjas on about one square mile of land. They one day
wake up to somebody called Andrew who had fenced off their entire land claiming that it was
his and threatens eviction. They are seeking to avert eviction but they don’t know how to go
about this.
Issues
What steps can be taken to stop Andrew from trespassing and evicting them from their land.
?
What remedies are available to the parties?
Law Applicable

The 1995 constitution of Uganda (as amended)

The Civil procedure Act Cap 71

The Judicature Act Cap 13

The Civil Procedure Rules S.I-71

Case law

Text books

Resolution

1. What steps can be taken to stop Andrew from trespassing and

evicting them from their land. ?

There are instances when there are many potential plaintiffs or defendants to an action
that it would be inconveniencing to join all of them in the same suit. Order 1 rule 8A 1
allows a representative action where numerous persons have the same interest.
O. 1 rule 8A (1) provides that;
“A person may institute a representative suit on behalf of all plaintiffs or all
defendants, or
all defendants, as the case maybe, who have the same actual and existing interest
in the

1
Civil Procedure Rules Amendment Act,2019
 subject matter of the intended suit, for the benefit of all.”

Requirements under Order 1 rule 8A

(a). Leave of Court
Order 1 rule 8A(2) provides;
“An Application for a representative Order shall be made by an intending plaintiff or
defendant who intends to represent all the plaintiffs and defendants for the benefit of
all as the case maybe, who have the same actual and existing interest in the subject
matter of the intended suit.”
This provision has been interpreted by court to be mandatory and if not complied with
would render the suit incompetent and incapable of amendment.
In Kayima Vs Rugoora2, Manyindo J (as he then was) held inter alia that;
“This being a representative suit, it was mandatory under Order 1 rule 8 of the Civil
Procedure Rules for the plaintiffs to obtain leave of court before filing it and a suit
that is
brought without leave of court is incompetent and cannot be stayed but should be
struck out.”

In Tarlogaj Singh Vs Jaspal Phaguda & Ors3 Ntabgoba P.J (as he then was) held in
similar way that;
“in my opinion, the taking of steps necessary to enable the plaintiff institute a suit in
a
representative capacity is taking the procedure under O. 1 rule 8 of the CPR and O.
7 role 4
of the CPR which is rendered in mandatory terms. With respect, therefore, the none
compliance with O. 1 rule 8 and O. 7 rule 4 of the CPR cannot be said to be a
matter of
misjoinder or nonjoinder. It is a matter that must be complied with and failure to so
comply renders the suit incurably defective.”
The mandatory nature of this requirement is fortified in O. 7 rule 44 which provides
that;

2
(1982) HCB 33
3
(1997-2001) UCLR 408-410
4
Civil Procedure Rules S.I-71
 “where the plaintiff sues in representative character, the plaint shall show not only
that
he/she has an actual existing interest in the subject matter but that he or she has
taken
steps if any, necessary to enable him or her to institute a suit concerning it.”
See also Kamoga & 5 Ors Vs Bank of Uganda HCCS No. 62 of 2009

(b). Notice
Order 1. Rule 8A (4)5 provides that;
“Subjest to subrule (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, the
court
may in each case direct.”
In Ibrahim Buwembo, Emmanuel Serunjogi & Zubairi Muwanika for and on
behalf of 800 Others Vs UTODA Ltd6 Kiryabwire J stated that;
“It would appear to me that the wording of O.1 r 8 as 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 a proper notice cannot be regarded 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 the
interested
parties can go on record in the suit either to support the claim or defend against
it.”

5
Ibid
6
(HCCS No. 664 of 2003)
(c). Same interest
O.1 r 8A (6)7 provides that persons having the same interest in one suit may bring a
representative action.

Mulla, The Code of Civil Procedure 8 provides that;

“The expression “same interest” must be distinguished from the expression “same
transaction”. What is required under Order 1 r 8A is that the parties must have the
same
interest; it is not sufficient that the interest a rise from the same transaction.”
In the case of Kasozi Joseph & 50,003 Ors Vs UMEME (U) Ltd 9 the plaintiffs had
the same interest in so far as they were all customers of electricity supplied by the
defendant, who were affected by its acts or omissions. However, the judge found that
some aspects of the claim and prayers would make it difficult for the court to hear and
determine this suit in a representative capacity. Peculiar evidence would have to be
adduced by each of the plaintiffs to prove some of the claims against the defendant.
For example, as argued by counsel for the defendant, it would be difficult for this
court to order damages for mental suffering without hearing the peculiar evidence on
how each of the plaintiffs was affected. The judge thus found the case was not
appropriate for a representative action.

(d) Authorisation
O. 1 rule 12(1) & (2)10 read together with O. 1 r 8A (3) (b) 11 require a person who
wishes to institute a suit or defend the same on behalf of others, to have authorization
from the members he/ she seeks to represent and that this authority shall be in writing.
Courts of law have interpreted this requirement to be mandatory and the absence of
the same renders a suit nugatory, incompetent, defective and cannot be cured by any
amendment or even Article 126 (2) (e)12
In the case of Ordema and 5 Ors V The Registered Trustees of Arua Diocese 13,
Mubiru j, perused through the application which was intended to have the numerous

7
Refer to footnote 59
8
(17th edn Vol 2 at page 37)
9
(HCCS No. 188 of 2010)
10
Civil Procedure Rules S.I -71
11
Ibid
12
1995 Constitution of Uganda (as amended)
13
HCMA no. 0017/2017
people suing by way of representative action and held that the case was a proper one
to support the grant of a representative order applied for.

O. 1 r 8A (3) (b)14provides thus;

“The persons represented have authorised the applicant to sue or defend in the
suit,
and the authorisation shall be in writing duly signed by the represented
persons.”
This position was emphasized by court in the case of Godfrey Zaribwende & 8 Ors
Vs ATC (U) LTD15 where Justice Esta Nambayo cited with approval, the case of
Lena Nakalema Binaisa & 3 Ors Vs Mucunguzi Myers16 in holding that;
An affidavit is defective by reason of being sworn on behalf of another without
showing that the deponent had the authority of the other Applicants. In this case the
affidavit is incurably defective for non-compliance with the requirement of the law. It
cannot support the application which seeks to add the other Applicants. The
application is dismissed with costs.”

In the case of Thomas Okumu V B.A.T and Mastermind Tobacco 17 , Katutsi J

stated that court cannot accept the argument that any spirited person can represent any
group of persons without their knowledge or consent. This would be undemocratic
and could have far reaching consequences.

It is prudent to note that the procedure of instituting a representative suit is by

chamber summons accompanied by a valid affidavit. The above notion is provided for
under order I rule 2218

2. What remedies are available to the parties?

(a) Temporary injunction

The Judicature Act19 is to the effect that applicants can apply for a temporary
injunction from the High Court restraining the defendant from further intermeddling
pending the determination of the subject matter in question as it has the mandate to do
so restraining any person from doing any act as may be specified by the court.

14
Civil Procedure Rules S.I -71
15
Misc. Appl. No. 526 of 2020 (Arising from C.S No. 286 of 2020
16
(Misc. Appl. No. 0460 of 2013)
17
HCCS No. 465 of 2000
18
Civil Procedure Rules S.I-71
19
Section 38(1)
The Civil Procedure Act cap 71 20 provides that court may grant a temporary
injunction to prevent the ends of justice from being defeated and in case of
disobedience commit the person guilty of it to prison and order that his or her
property be attached and sold.

Furthermore, the case of Sikina (the Cargo Owners) v Distov Compania Noviera21,
is to the effect that the right to temporary injunction merely and incidental to cause of
action existing. The right to a temporary injunction order cannot exist in isolation
always incidental and dependent upon the enforcement of the substantive right.

Applicants can also apply for a temporary injunction from the high court restraining
the defendant from further intermeddling pending the determination of the subject
matter in question as it has the mandate to do so restraining any person from doing
any act as may be specified by the court. As provided for under Section 38(1) cap
16 of the Judicature Act.

22
In the case of Robert kavuma vs. Hotel international Wambuzi CJ (as he then
was) stated that for an order of injunction to be granted the court, the applicant must
prove that the property in dispute is in danger of being destroyed or damaged and that
the defendant threatens or intends to remove or dispose of with the view of defrauding
the applicant.

The Applicants can therefore apply to Court for a Temporary Injunction for as long as
they fulfil the requirements for granting the same.

(b) Costs

It is now a settled principle of the law that costs follow the event. This was enunciated
in Francis Butagira Vs Namukasa23 this follows an equitable principle that none
shall come out of court without a remedy. The Judicature Act, Cap 13 provides for the
grant of such remedies. They can be awarded General Damages. It has been noted by

20
Section 64
21
SA [1979] AC 210
22
SCCA No.8 of 1990
23
HCB (1992-1993) 98
Courts of law that costs are not to enrich the plaintiff/Applicant but rather to put them
back in the position they should have been in had it not been for the suit.24

It is imperative to note however, that remedies are discretionary in nature and can be
awarded by court if it deems it just to do so.

In submission therefore, these 25 aggrieved persons can commence a representative

suit through one of them and this person should have the authority of the rest of the
members and this authority must strictly be in writing and also signed by the rest of
the members.

24
Section 98 of the Civil Procedure Act