Mansukhlal Ramji Karia and Another v Attorney General and Others (Civil Appeal No. 20 of 2002) [2004] UGSC 53 (16 December 2004)

# Mansukhlal Ramji Karia and Another v Attorney General and Others (Civil Appeal No. 20 of 2002) [2004] UGSC 53 (16 December 2004) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Mansukhlal+Ramji+Karia+and+Another+v+Attorney+General+and+Others+%28Civil+Appeal+No.+20+of+2002%29+%5B2004%5D+UGSC+53+%2816+December+2004%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2004%2F53%2Feng%402004-12-16) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Mansukhlal+Ramji+Karia+and+Another+v+Attorney+General+and+Others+%28Civil+Appeal+No.+20+of+2002%29+%5B2004%5D+UGSC+53+%2816+December+2004%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2004%2F53%2Feng%402004-12-16) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2004/53/eng@2004-12-16) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2004/53/eng@2004-12-16) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Mansukhlal%20Ramji%20Karia%20and%20Another%20v%20Attorney%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2004/53/eng@2004-12-16) [ Download RTF (1.6 MB) ](/en/akn/ug/judgment/ugsc/2004/53/eng@2004-12-16/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2004/53/eng@2004-12-16/source.pdf) Report a problem ##### Is there something wrong with this document? 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LTD.** **] APPELLANTS** **AND** 1. **ATTORNEY GENERAL** **]** 1. **MAKERERE PROPERTIES. LTD. ]** 1. **AMIN MOHAMED PIRANI** **] RESPONDENTS** _**[Appeal from the Judgement of the Court of Appeal at Kampala (Makasa-Kikonyogo, DCJ, Engwau and Kitumba, JJ.A) dated 1**_ _**st**_ _**August, 2002 in Civil Appeal No.69 of 2000]**_ **_JUDGMENT OF TSEKOOKO, JSC_****.** The appellants instituted an appeal by way of "a suit" in the High Court against the respondents. In the suit, the appellants claimed jointly and severally for diverse declarations. Mugamba. J, dismissed the suit following preliminary objections by the respondents' counsel concerning the competence of the suit. The appellants' appeal to the Court of Appeal was unsuccessful. In this judgment I shall refer to the first appellant, Mansukhlal Ramji Karia, as A1 and the second appellant, Crane Finance Co. Ltd., as A**2**. Similarly I shall respectively refer to the first respondent, Attorney General, as "RI", the second respondent, Makerere Properties Ltd., as **"R2"****** and the third respondent, Amin Mohamed Pirani, as **"R3".** I will give the background to this appeal as reflected in pleadings and related documents. The case never reached fullfledged trial. **R2****** was incorporated in **1959.********R3****** had brothers who were all Asians and directors of **R2.****** The other brothers are Allibhai Abdulaziz Pirani, Sadrudin Abdulaziz Pirani and Badrudin Abdulaziz Pirani. On **23/3/60,********R2** was registered as the proprietor of a piece of land comprised in plot **13,****** Market Street, Kampala. The Plot is the subject of these proceedings. I shall hereinafter refer to the plot as the "suit land". During the **1972****** expulsion of Asians from this country by the Military Government of Idd Amin, the brothers (directors of **R2)****** were expelled by Idd Amin's regime. The suit land vested in Government by operation of law (the Departed Asians Property Decree, **1973)****** and was managed by the Departed Asians Property Custodian Board (DAPC Board). In **1981,****** Sadrudin Abdulaziz Pirani, **(Sadrudin)** returned to Uganda. He successfully claimed for repossession of his own properties. He also claimed for the suit land on behalf of **R2**. The DAPC Board purported to return the suit land to **R2** under the provisions of the Departed Asians Property Decree **1973,******(Decree NO. **27****** of **1973)******. When returning the suit land to **R2,****** a Mr. J. Ssonko, on behalf of the Ag. Executive Secretary of DAPC Board, by his letter CB/CL/12/641 dated 30th September, 1981 authorising R2 to repossess the suit land clarified that **"the Government will have to issue you with a final certificate of ownership after finalisation of the administrative machinery and policy of returning properties to their previous owners."** In 1981 Sadrudin manipulated shareholding in R2 and in the Company Registry whereby he became the shareholder of 90% of the total shareholding in R2. R3, remained with 10%. On 27/11/1981 Sadrudin sold the suit land to A1 who was subsequently registered as proprietor on 2nd August, 1982. Meantime Parliament passed the Expropriated Properties Act, 1982 (Act No. 9 of 1982) which came into force in early, 1983. However after the purported sale of the suit land, in 1981, Sadrudin and R3 sold their shares in R2 to A1 and two other persons at a nominal value in 1982. Subsequently, on 2nd April, 1991, the Minister of Finance, Economic Planning and Development **(MOFEPD)** issued a Certificate of Repossession (No.0607), not to R2, as promised in 1981, but to A1 to whom, as earlier noted the suit land had been transferred. During 1992, R3 instituted High Court Company Cause No.2 of 1992 against A1 and two others. In the accompanying affidavit, R3 alleged that Sadrudin acted fraudulently in acquiring more shares in R2. The High Court upheld R3's allegations that the transfer of the shares by Sadrudini was fraudulent. The Court ordered for the company-register to be rectified to reflect the 1972 position which was apparently done. There does not appear to have been any appeal against that High Court decision. A number of other suits were filed in respect of the suit land. There is no need to mention them here now. On 10th April, 1996, the Minister rejected an application by R2 for repossession of the suit land on the ground that R2 transferred the property (to A1) on 27/11/1981. Consequently R2 instituted a suit entitled Misc. appeal No.443 of 1996 against R1 **(Makerere Properties Ltd, Vs Attorney General)** praying for a Court to order the Minister to issue to R2 a repossession certificate. The High Court dismissed the suit. R2 successfully appealed to the Court of Appeal in Civil Appeal No.3 6 of 1996. That Court directed the Minister to deal with the suit land under Act 9 of 1982. Meantime during the same period, 1996, A1 sold the suit land to **Nadims Ltd** which in May, 1997 also sold and transferred the same suit land to **Meera Investment Ltd.**(Paragraph 10(a) of the plaint avers that A1 has interest in this company). Within 1 1/2 months the company also transferred the land to A2. But as result of the Court of Appeal order in Civil Appeal 36 of 1996, the Minister himself cancelled the previous repossession certificate (No.0607) which had been issued to A1. On 3/8/98 the **MOFEPD** issued a fresh certificate of repossession (No.3194) to R2. A1 and A2 felt aggrieved by the cancellation of the old certificate (0607) and the grant of repossession of suit land to R2, and so they promptly instituted HCCS No.918 of 1998 against the three respondents claiming for certain declarations and an injunction against the respondents. One of the main claims by the appellants in their plaint is that the Minister has no powers to cancel certificate No.0607. In their respective written statements of defence, the respondents averred that both appellants had no cause of action and they also pleaded the defences of res judicata and of misjoinder of parties and of causes of action. Further R1 pleaded lack of notice under Act 20 of 1969. The respondents also pleaded that Act 9 of 1982 nullified all dealings in the suit land. The manner in which the suit was filed originally appeared as if it was an ordinary suit but during the hearing of the "suit", and on appeal, counsel for the plaintiffs/appellants stated that it was an appeal under section 15 (former S.14) of Act 9.of 1982\. This case and a few other cases instituted in Courts under that section shows confusion which has persisted about the nature of the proceeding filed in the High Court challenging the decision of the Minister refusing to grant or for granting repossession certificates to applicants for repossession or cancelling such certificates after issuing them. When the suit first came up in the High Court before Mugamba, J., for hearing, the respondents' counsel took three points of objection to the competence of the case. Counsel contended: - 1. That the suit did not disclose a cause of action against any of the three respondents. 2. That the suit was incompetent against the Attorney General (R1) because no statutory notice was served under Section 1 of Civil Procedure and Limitation (Miscellaneous Proceedings) Act, 1969 (Act 20 of 1969). **3.** That the subject of the suit was res judicata because of the Court of Appeal decision in Civil Appeal No. 36 of 1996 **(Makerere Properties Ltd. Vs Attorney General).** The trial judge (Mugamba, J) upheld all the three points of objection and so he dismissed the suit. (The pleadings on both sides in these proceedings raised serious allegations of fraud and claims which could have been better investigated during a fuller hearing). Be that as it may, the appellants unsuccessfully appealed to the Court of Appeal. They have now brought this appeal to this Court. The original memorandum of appeal contained nine grounds, to most of which counsel for the respondents objected because of their form. This Court adjourned the hearing and granted the appellants leave to improve formulation of the memorandum. When the appeal was called up again, Counsel for the appellants again objected to most of the grounds in the amended Memorandum of Appeal. This forced Mr. Lule, counsel for the appellants, to abandon grounds 2,3,4,7,8 and 9 of the amended memorandum of appeal. He argued the remaining ground 1 separately and grounds 5 and 6 together. These are the grounds the court is to consider and determine in this appeal. Before considering the grounds of appeal and submissions made thereon, however, it is convenient to consider and dispose of a fundamental question which the Court raised later after hearing the appeal and while judgment was pending. The question is whether this appeal is properly before us. In my opinion this question is of fundamental importance. We asked counsel to address us on it. Our invitation to the parties to address us on the competence of this appeal is contained in a letter of the Registrar of the Court dated 16/6/2004. It reads in part as follows: - _"(a)____On_ ___28/7/1998_ ___the_ ___Minister_ ___cancelled_ ___Repossession Certificate_ ___No.0607_ ___dated_ ___2_ _**/4**_ _/91_ ___which_ ___had_ ___been issued_ ___to_ ___the_ ___first_ ___appellant,____M.R.Karia._ _.(b)____The_ ___Minister_ ___issued_ ___another_ ___Repossession Certificate_ ___to_ ___the_ ___second_ ___Respondent._ _The_ ___appellants_ ___appealed_ ___first_ ___to_ ___the_ ___High_ ___Court against_ ___the_ ___said_ ___decision_ ___of_ ___the_ ___Minister_ ___under section_ ___14(1)____of_ ___the_ ___Expropriated_ ___Properties_ ___Act, 1982.____Later_ ___the_ ___appellants_ ___unsuccessfully-appealed_ ___to_ ___the_ ___Court_ ___of_ ___appeal._ _This_ ___Court_ ___would_ ___like_ ___the_ ___parties_ ___to_ ___address_ ___it_ ___on the_ ___following_ ___question:_ _If_ ___the_ ___matter_ ___in_ ___the_ ___High_ ___Court_ ___was_ ___an_ ___appeal,____in view_ ___of_ ___the_ ___provisions_ ___of_ ___Article_ ___132(2)____of_ ___[the Constitution](/akn/ug/act/statute/1995/constitution)_ ___and_ ___of_ ___section_ ___6(1)____of_ ___the_ ___Judicature Act,____do_ ___the_ ___appellants_ ___have_ ___an_ ___unrestricted_ ___right_ ___of appeal_ ___from_ ___the_ ___Court_ ___of_ ___Appeal_ ___to_ ___this_ ___Court?_ In response the parties filed written submissions. Mr. Lule for the appellants gave detailed background to the dispute before making submissions on the question. The summary submission by Mr. Lule on this point is that: - (a) an appeal under S.15 (former S.14) of **[Act 9 of 1982](/akn/ug/act/1982/9) **is not an ordinary appeal but an ordinary suit. For this opinion he relied on Article 139 (2) of [the Constitution](/akn/ug/act/statute/1995/constitution), Regulation 15 of the **Expropriate Properties (Repossession and Disposal) Regulations,** 1983 (SI.1983 No.6) and section 39(1) of the **Judicature Act** and also on two recent cases decided by this Court. These cases are **Habre International Co. Ltd. Vs Ebrahim Arakhia Kassim & Others **(Civil Appl.14 of 1999) (unreported) and **Mohan Musisi** **Kiwanuka Vs Asha** C**had** - Civil Appeal No.14 of 2002.(unreported) 2. This Court is competent to hear and determine this appeal as a second appeal without leave. He relied on S.6 (1) of the **Judicature Act,** and **Article 132(2) of the** C**onstitution.** 3. The case in the High Court had the character of a judicial review upon deprivation of property without compensation and without the proprietors being given a chance to defend their interests in a court. Reliance by the High Court and by the Court of Appeal on Civil Appeal No. 36/1996 **(Makerere Properties Ltd Vs Attorney General)** to which the appellants were not parties nor upon which they were heard renders the trial in the High Court and the appeal in Court of Appeal a nullity under Article 126(2) (e). He argued that this Court should prevent a nullity from defeating justice. 4. In the event the Court finds that it has no jurisdiction, the matter should be referred to the Constitutional Court for interpretation under **Article 137(5) (b) .** For the first Respondent, Mr. Joseph Matsiko, Ag. Head, Civil Litigation, did not make separate submissions. He agreed with and fully associated himself with the submissions of Mr. Nangwala, counsel for the 2nd and 3rd Respondents. Mr. Nangwala in summary contended: - 1. That the _**"appeal did not**_ _**lie**_ _**as**_ _**of**_ _**right to"**_ this Court within the spirit of S.6 (1) of the **Judicature Act.** In considering the matter under S.15 of **[Act 9 of 1982](/akn/ug/act/1982/9), **the High Court exercised an appellate, and not an original, jurisdiction. He relied on **Hem Singh Vs Mahant Basant (1936) I ALL ER** 356 (PC)_**,**_**Secretary of State for India Vs Chelikan Rama Rao (1916) LR 43 1nd App 192 and Mityana Ginners Ltd Vs Public Health Officer, Kampala**(1958) EA. 339. 2. The fact that an aggrieved party has to appeal within 30 days under S.15 is a characteristic of appeals and not of suits. 3. It is irrelevant that this Court has in the past entertained similar appeals since the issue now under consideration by the Court has never been canvassed in any of those other cases. Indeed counsel appears to suggest that **Kiwanuka's case**(supra) was wrongly decided. Act 9 of 1982 has been implemented for just over twenty years now. It would appear that a number of cases similar to this one have been brought to this Court under the provisions of that Act and were decided as normal 2nd appeals. Therefore if we have to upset those decisions the matters raised by the question have to be given due consideration. With respect it is not correct to say as argued by Mr. Nangwala, that this court should ignore its past decisions of cases similar to the present. This indeed is the time to correct past errors if there are any at all. General appellate jurisdiction of this Court is conferred by Article 132(2) of the Constitution. Clause (2) thereof reads as follows: - **" An** _**appeal shall**_ _**lie**_ _**to the Supreme Court from such decisions**_ _**of**_ _**the Court**_ _**of**_ _**Appeal as may be prescribed by**_ _**law."**_ In civil cases appeals come to this Court via the Court of Appeal because of subsection (1) of S.6 of the **Judicature Act.** The subsection reads this way: _**"6(1)**__**An appeal shall**_ _**lie**_ _**as**_ _**of**_ _**right to the Supreme Court where the Court**_ _**of**_ _**Appeal confirms, varies or reverses a judgment or order including interlocutory order given by the High Court in the exercise**_ _**of**_ _****__**its**_ _**original jurisdiction and either confirmed, varied or reversed by the Court**_ _**of**_ _**Appeal**_ _**."**_ Clearly this subsection gives to parties an unrestricted right of appeal to this Court in civil causes emanating from trials by the High Court. Appeals are not restricted or made conditional on any procedure. Subsection (2) of S.6 regulates third appeals which emanate from Courts presided over by Chief Magistrates or by Magistrates Grade I. Such appeals come to this Court only with leave of either the Court of Appeal or of this Court. I am satisfied that the present appeal is not governed by the provisions of subsection (2). The question raised and that needs court's answer is whether the present appeal falls under the appeals envisaged by subsection (1) or any other law authorising appeals to this Court. Mr Lule contends that it does. Messrs. Nangwala and Matsiko, on the other hand, hold the contrary views. Mr. Lule argued strongly that the competence of this Court to entertain this appeal has to be determined on the basis of the character of the proceedings before the High Court from which this appeal arose, the nature of the proceeding as provided for under **[Act 9 of 1982](/akn/ug/act/1982/9),**and the **Regulations** in S.I 1983 No.6, the kind of powers the Minister exercises under the Act and also on the basis of other statutory provisions and laws relating to interest in and title to land within the context of this case. I find it unnecessary to consider the last part of this submission because Mr. Lule himself conceded right from the High Court that the case was instituted under S.15 of Act 9/82. Let me start with S.15(l) of the Act. It reads: _**"15(1).**__**Any person who**_ _**is**_ _**aggrieved by any decision made by the Minister under this**_ _**Act,**__**may, within thirty days from the**_ _**date**_ _****__**of**_ _**communication**_ _**of**_ _**the decision to him or her appeal to the High Court against that decision".**_ It is argued that the word **"APPEAL"** as used in the subsection is not used in a technical sense of a **"judicial proceeding"** but rather it is used in the ordinary sense meaning **"CHALLENGE"**_**.**_ For that opinion Mr. Lule relied on the words employed in framing Regulation 15 which reads as follows: - _**"15.**__**The Rules**_ _**of**_ _**Civil Procedure governing**_ _**institution**_ _****__**of**_ _****__**suits**_ _**in the High Court shall apply to appeals made under section**_ _**(15)**__****__**of**_ _**the Act"**_ In this connection note should be taken of the definition of a **"suit"** as "all proceedings commenced in any manner prescribed": See S.2 of the Civil Procedure Act. I note that neither Act 9 of 1982 nor Regulations in S.I. 1983 No.6 define the word **"appeal".** Nor does the Civil Procedure Act. According to Mr. Lule if the decision of the Minister were considered a judicial decision appealable to the High Court in the same sense, for instance, as an appeal lies to the High Court from a Chief Magistrate's decision in a civil case or from a tribunal exercising judicial powers and subject to at least the basic judicial procedure. Regulation 15 would have been worded differently. It would instead say _**"the rules**_ _**of**_ _**Civil Procedure governing**_ _**institution**_ _****__**of**_ _**appeals in the High Court."**_ Learned counsel contended that in hearing an appeal against the Minister's decision made under S.15, the High Court is _enjoined_ ___to_ ___exercise_ ___its_ ___jurisdiction_ ___to determine_ ___the_ ___matter_ ___by_ ___trying_ ___the_ ___**"APPEAL"**__by_ ___applying the_ ___rules_ ___which_ ___apply_ ___to_ ___an_ ___ordinary_ ___civil_ ___suit_ instituted under the **Civil Procedure Rules,** but not those **Civil Procedure Rules** which govern ordinary civil appeals in the High Court. The trial of such a suit, contended learned counsel, would result in appeals ending in this Court. Therefore this Court is competent to determine this appeal as a second appeal. Since it is not argued that the Minister is a court lower than the High Court, I do not think that the provisions of Clause (2) of Article 139 relied on by Mr. Lule are relevant to the question I am considering now. The clause reads: - _**"(2)**__**Subject to the provisions**_ _**of**_ _**this Constitution and any other law, the decisions**_ _**of**_ _**any court lower than the High Court shall be appealable to the High Court."**_ Now, I have noted the use of the word **"suit"** in section 14 which immediately precedes S.15 in which the draftsman preferred to use the word **"appeal"** instead of **"sue".** I fail to appreciate any rational basis for the distinction created by the use of the two words in two separate but succeeding sections in the same Act. The provisions of section 14 appear under the heading **legal proceedings** and there the words **"sue"** and **"suit"** are used to signify the filing of an originating proceeding in the High Court. On the other hand, section 15 appears under the heading **"APPEAL"** and in its subsection (1) the words " **appeal to the High Court"** are employed. At first I thought that the two words were used deliberately in the subsection so that **"to sue"** and **"to appeal"** would respectively connote instituting a **"Civil Suit"** and a **"Civil Appeal"** in the ordinary way. However, in addition to suggested definition under English law authorities, (infra)some dictionaries provide clues to the use of the two words. The **Wordsworth Dictionary of Synonyms and Antonyms** gives the synonyms of the verb **"Appeal"** as address, invoke, entreat, implore, supplicate, sue and petition. The same dictionary gives the synonyms of the verb **"sue"** as to prosecute, accuse, take to court. It appears therefore that the two expressions i.e. **"appeal to court"** and **"to sue",** mean taking to Court. In Vol.37 of **Halsbury's Laws of England,** 4th Ed, a general definition of a judicial appeal (para 677) is said to be an application to a superior Court or tribunal to reverse, vary or set a side the judgment, order, determination, decision or award of an inferior court or tribunal in the hierarchy of Courts or tribunals on the ground that it was wrongly made or that as a matter of justice or law it requires to be corrected. In so far as ordinary judicial appeals are concerned this definition is satisfactory as it is wide enough to cover all forms of appeal, whether on a point of law or of fact or of mixed fact and law or by way of case stated or by judicial review. The appellate provisions for example, in our Judicature Act and the Civil Procedure Act bear out this definition. Another English authority is **Strouds Judicial Dictionary,** 4th Ed, Vol.1. At page 155, it gives the following two meanings of **"appeal",** in Court among others which meanings are similar to that given above in Halsbury's Laws. _First_ ___it_ ___states_ ___that_ ___**"To**_ _****__**appeal"**__****__is_ ___the_ ___right_ ___of_ ___entering a_ ___superior_ ___Court_ ___and_ ___invoking_ ___its_ ___aid_ ___and_ ___interposition to_ ___redress_ ___the_ ___error_ ___of_ ___the_ ___Court_ ___below......"____Secondly_ ___"An_ _appeal"____strictly_ ___so_ ___called_ ___is_ ___one_ ___in_ ___which_ ___the_ ___question_ is _whether_ ___the_ ___order_ ___of_ ___the_ ___court_ ___from_ ___which_ ___the_ ___appeal is_ ___brought_ ___was_ ___right_ ___on_ ___the_ ___materials_ ___which_ ___that_ ___court had_ ___before_ ___it."___ These meanings tend to support the view that a judicial appeal is not the one intended in S.15 because of the use of the expression " **appeal to the High Court."** With respect I do not agree with Mr. Nangwala's contention that the 3 0 days limitation period implies that the appeal is an ordinary judicial appeal. I think it would be a misnomar to describe a suit instituted under S.15 to challenge the Minister's rejection of an application for repossession as an ordinary judicial appeal. Mr. Lule further relied on the two decisions of this Court **(Habre International and Musisi Kiwanuka)**(supra) to support his contention that the character of the appeal envisaged by S.15 is that of an ordinary suit. In my opinion **Habre International** decision is not quite helpful. There the appellant sued the former owner of an expropriated property for compensation in respect of improvements carried out on the building repossessed by that former owner. The High Court decision granting relief to the appellant was overturned by the Court of Appeal which held that the High Court had no original jurisdiction to try the suit. On appeal to this Court, it was held that the former owner's liability to pay compensation lay under section 11 of Act No. 9 of 82 and not under S.15. Indeed in his lead judgment, Karokora, JSC, held that: **. there** _**was no decision by the Minister made**_ _**under the Act that aggrieved the appellants against which they could go to the High Court by way**_ _**of**_ _**appeal under section**_ _**[15(1)1**_ _****__**of**_ _**the**_ _**Act."**_ It was in the concurring judgment of Mulenga, JSC, where, in relation to S.[15(l)], the learned Justice of Supreme Court doubted any judicial function of the Minister in making a decision under S.15 (1). The learned Justice of the Supreme Court expressed himself, in that connection, in the following words: - _**"The provision**_ _**of**_ _****__**[S.15(1)]**__****__**of**_ _**[the Expropriated Properties Act](/akn/ug/act/1982/9) to the **__**effect**_ _**that a person aggrieved by the Minister's decision under the**_ _**Act,**__**may appeal to the High Court, cannot be construed as in any way**_ _**affecting**_ _**the original**_ _**jurisdiction**_ _**of**_ _**the High Court**_ **It******_**seems to me that the Minister**_ _**is**_ _**not thereby given judicial appeal as from one court**_ _**of**_ _**law to another."**_ The definitions I have just quoted appear to support this view. As already noted, the claim in the suit was for compensation, a matter governed by S.11 of the Act. So this Court held that the Court of Appeal erred in holding that because [S.15(l)] confers **"appellate"** jurisdiction on the High Court, the High Court could not exercise its original jurisdiction to try the suit. In any event the opinion of Mulenga, JSC, in that appeal was that the appeal against the decision of the Minister was not a judicial appeal. He later reiterated that opinion in **Musisi Kiwanuka's case**(supra) . At page 14 of his typed judgment, he said, _**"I**_ _**would reiterate what I said in Habre International**_ _**Co.**__****__**Ltd.**__****__**Vs.**__****__**E.A.**__**Kassak &**_ _**Others that "AN APPEAL" under**_ _**S.14**_ _****__**of**_ _**the Act**_ _**is**_ _**not a judicial appeal. The Minister in the exercise**_ _**of**_ _**power vested in him by the**_ _**Act,**__**makes administrative decisions. Section 14**_ _**of**_ _**the Act directs that a person aggrieved by such a decision may appeal**_ _**to**_ _**the High Court, within a period**_ _**of**_ _****__**thirty**_ _****__**days.**__**Apart from that time**_ _**limit,**__**the Act does not**_ _**stipulate**_ _**any special procedure for**_ _**instituting**_ _**the appeal or challenge against the Minister's decision. The challenge can be done in an ordinary civil**_ _**suit."**_ It may be true to say, as implied in this passage, that sometimes a legislation providing for an appeal to a Court against a judicial decision, a quasi judicial or an administrative decision also sets out a procedure on how such an appeal may be instituted. However the absence of procedure, or of a procedure for appealing, is itself not sufficient evidence that no judicial appeal was intended by the legislature. Whether or not a legislation providing for exercise of a power provides for a **"judicial appeal"** will, in my opinion, depend on the wording of the particular legislation and these proceedings support this view. The decision in **Hem Singh**(supra) on which Mr. Nangwala relied appears to support the appellants. The case arose in India, from three appeals originating from decisions of an administrative tribunal. From the tribunal the case went to the High Court which set aside the decisions of the tribunal. Eventually there was an appeal to the Privy Council where the respondents challenged the competence of the two appeals. The Privy Council reviewed a number of decided cases including **Secretary of State for India (supra)** , before concluding that the jurisdiction conferred upon the High Court of India was intended to include the new subject matter as part of the ordinary appellate jurisdiction of the High Court, and the case was within the general principle laid down by Viscount Haldane in **National Telephone Co. Vs Post Master General**(1913) A.C 546 at 552 that "when a question is stated to be referred to an established court without more, it imports that the ordinary incidents of the procedure of that court are to attach and also that any right of appeal from its decisions likewise attaches". In **Mityana Ginners Case**(supra) a case originating from this country and which is of some interest, the Privy Council held that since the appeal to the District Court (against a notice under the Public Health Ordinance by the Medical Officer of Health) was not commenced in any manner prescribed by Rules to regulate the Civil Procedure of the Courts, that appeal was not a suit. That holding distinguishes **Mityana case** from the present one. In the present case, Rule 15 (supra) stipulates that Civil Procedure Rules apply in instituting an **"appeal"** under S.15. I fail to see any sound reason why a party seeking for compensation under S.12 of the Act for improvement made on an expropriated property can proceed by way of an ordinary suit whilst a party seeking to challenge a pure ministerial decision under S.15 (1) has to file an appeal. It seems to me that in the light of Rule 15, and the definition of **"suit"**(supra) challenging a ministerial decision is by way of suit even if the Act describes the challenge as an appeal. It is probably the better procedure because it enables parties to call witnesses, or adduce evidence, to support their claims. Furthermore, neither S.15 nor any other Provision in the Act indicates how far an appeal instituted under S.15 (1) can progress in the Court hierarchy. In other words the section neither prohibits nor expressly allows an aggrieved party to take or refrain from taking an appeal up to this Court. In the circumstances, I think that we have jurisdiction to hear and determine the appeal. It is now not necessary to deal with the last of Mr. Lule's arguments on the question. I will now turn to the grounds of appeal and I start with ground one, which is formulated in these words: -**The Court of Appeal erred in law to hold that****CA****No.36 of 1996, to which the appellants were not parties applied to the instant case and operated as res judicata against the appellants.** On this ground, Mr. Lule's submissions are a reflection of the averments in the plaint namely that none of the ingredients of **res judicata** are present because: - 1. Neither of the appellants was a party to the proceedings in Civil Appeal No. 36 of 96 nor did any of them claim through a party to that appeal. He cited several authorities in support of his arguments. Later in rejoinder to Mr. Nangwala's counter arguments, Mr. Lule contended that in this appeal the issue is not on the status of, but on interest in, the suit land. So no question of a decision in rem arises to bar the appellants. 2. The subject matter must be directly or substantially in issue in the dispute. 3. Parties must have litigated under the same title. 4. The Court of Appeal decided appeal No.3 6/96 contrary to law and to the facts of the case. The case cannot, therefore, operate as res judicata. Learned counsel argued that the **MOFEPD** originally returned the suit land to R2, a company, and not to Sadrudin, an individual, yet the Court of Appeal found to the Contrary. He relied on **[United Assurance Co. Ltd. Vs Attorney General (Uganda Court of Appeal Civil Appeal No.1 of 1986)](/akn/ug/judgment/ugsc/1986/18) **for the view, which, as a general principle, is correct, that a director can act for and bind a company. For the 2nd and 3rd respondents, Mr. Nangwala contended that: (a) The Court of Appeal properly found that its previous decision in Civil Appeal No.36 of 1996 bound the appellants even though the appellants were not parties thereto. 2. This Court can not set aside Civil Appeal No.36 of 1996 when that appeal is not a subject of Appeal here. He relied on **Jeraj Sharriff Vs Store**(1960) EA 374 and **Hulsbury's Law of England,** 3rd Ed., Vol. 15 paragraphs 351,366 and 367 where a distinction is made between a judgment in rem and a judgment inter partes and contended that a decision in rem is conclusive against strangers. 3. The decision of the Court of Appeal that the suit land vested in Government, bound A1 and A2. 4. Res judicata has the same effect as a judgment in rem. Mr. Matsiko, Principal State Attorney, representing R1, adopted the submissions of counsel for R2 and R3. I will first discuss the meaning, operation and effect of the plea of res judicata. The respondents pleaded this defence on the basis of the decision of the Court of Appeal in Civil Appeal No.36 of 1996 (supra). The doctrine of res judicata is set out in S.7 of the **Civil Procedure Act** in the following words - _**"No court shall try any**_ _**suit**_ _**or issue in which the matter**_ _**directly**_ _**and substantially in issue has been**_ _**directly**_ _**and substantially in issue in a former**_ _**suit**_ _**between the same**_ _**parties,**__**or between parties under whom they or any**_ _**of**_ _**them claim,**__**litigating**_ _**under the same**_ _**title,**__**in a court competent to try such subsequent suit or the**_ _**suit**_ _**in which such issue has been subsequently raised, and has been heard and**_ _**finally**_ _**decided by such court."**_ The provision indicates that the following broad minimum conditions have to be satisfied: - 1. _There_ ___have_ ___to_ ___be_ ___a_ ___former_ ___suit_ ___or_ ___issue_ ___decided by_ ___a_ ___competent_ ___court._ 2. _The_ ___matter_ ___in_ ___dispute_ ___in_ ___the_ ___former_ ___suit_ ___between parties_ ___must_ ___also_ ___be_ ___directly_ ___or_ ___substantially in_ ___dispute_ ___between_ ___the_ ___parties_ ___in_ ___the_ ___suit_ ___where the_ ___doctrine_ ___is_ ___pleaded_ ___as_ ___a_ ___bar._ 3. _The_ ___parties_ ___in_ ___the_ ___former_ ___suit_ ___should_ ___be_ ___the same_ ___parties,____or_ ___parties_ ___under_ ___whom_ ___they_ ___or_ ___any of_ ___them_ ___claim,____litigating_ ___under_ ___the_ ___same_ ___title._ In HCCS 553 of 1966 **(Ismail Karshe Vs Uganda Transport Ltd) cases on Civil Procedures and Evidence,** Vol.3 page.1, Sir Udo Udoma, former Chief Justice of Uganda, put it this way: Once a decision has been given by a Court of competent jurisdiction between two persons over the same subject matter, neither of the parties would be allowed to relitigate the issue again or to deny that a decision had in fact been given, subject to certain conditions. In my opinion this is a correct summary of S.7. There is no doubt that neither appellant was a party to Civil Appeal 36 of 1996. As already noted, in 1982 the DAPC Board through a Mr. J. Ssonko, its Ag. Executive Secretary, purported to return the suit land to R2. The application for repossession had been lodged by Sadrudin, admittedly one of the Directors of R2. Sadrudin sold the suit land to A1 who on 2/8/1982 was registered as proprietor. The suit land was again transferred twice before it was sold to A2, it being the fourth transferee. As summarised earlier, in 1991, R3, one of the Pirani brothers and a shareholder in R2, came to Uganda and discovered the sale and transfer of suit land. He obtained powers of Attorney from his other brothers who were then still in Canada, and themselves also Directors of R2. He successfully challenged Sadrudin's manipulation of shareholding in R2, by instituting High Court Company cause No.2 of 1992 **(Amin Mohamed** **Abdullaziz Pirani Vs Mansukhlal Ramji Karia (A1) and 2 others.** The High Court (Kalanda, J) concluded that the