Mansukhlal Ramji Karia and Another v Attorney General and Others (Civil Appeal 20 of 2002) [2004] UGSC 47 (16 December 2004)

a, RT.PUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (GORAM: ODOKI, cJ., ODER, TSEKOOKO, KAROKORA & KANYEIHAMBA,JJ,SG.) CIVIE APPEAL No.20 OF 2002o .i 1. MANSUKHI-,AI RAM.]I KARIA l I L 2 3 A],ID ATTORNEY GENERAL I4AKERERE PROPERTIES. I.,TD. A}'IN MOHAMED PIRANI .]UDGMENT OF TSEKOOKO 'tsc. fAppeal froar the .Tudgre&eD t of tbe Court of Appeat a t Kampa]a (lfakasa -Kikonyogo, DCJ, Engwau aud Kltumba, ,J,f .A) dated j."t Augrust, 2002 in CiviL Appeat No.69 of 20001 l l l RESPONDE}flTS The appellants inst.ituted an appeal by way of rra suitrl in t.he High CourE against the respondents. In the suit, the appellant,s claimed jointly and severally for diverse declarations. Mugamba. aI, dismissed E.he suit following preliminary objections by the respondentsr counsel concerning Lhe competence of the suiE. The appellants' appeal t.o the Court. of Appeal was unsuccessful . In this judgment I shall refer to the first appeLlant., Mansukhlal Ramji Karia, as AI and the second appellant, Crane Finance Co. Ltd., as A2. Similarly I shal1 respectively refer Lo the firsL respondent,, 1 , .1?[!J a t{tV+'q ..............APPELLANT S 2. CRANE FINANCE CO. LTD. rla At.torney General , as "RI ,r , the second MakerQre Properties Lt.d., as rrR2r', and respoildent, Amin Mohamed Pirani, as "R.3'r. I will give the background to Ehis appeal as reflect.ed i.n,pleadings and relat,ed documents. The case never reaehed fullfledged Erial . . R2 was incorporated in 1959. R3 had brothers who were all Asians and directors of R2. The other broEhers are AlIibhai abdulaziz Pirani, Sadrudin Abdulaziz Pirani and Badrudin Abdulaziz pirani. On 23/3/60, n2 was registered as the proprietor of a piece of land comprised in plot 13, Market StreeE, Kampala. The Plot is the subject, of Ehese proceedings. I shall hereinafter refer to Ehe plot as the "suit landr. During the 1972 expulsion of Asians from this count.ry by the Military Government of Idd Amin, the brothers (direct.ors of R2) were expelled by Idd Amin's regime. The suit land vest.ed in Government, by operation of law (the Departed Asians Property Decree, 3-g7tr) and was managed by the DeparEed Asians property CusEodian Board (DAPC Board). In 198L, Sadrudin Abdulaziz Pirani, (Sadrudin) returned t.o 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 ret.urn the suiE 1and Eo R2 under the provisions of the Depart.ed Asians property Decree 1973, (Decree NO. 27 of 1973). When returning the suit land to R2, a Mr. J. Ssonko, on behalf of the 2 resiondent, E,he third I Ag. Executive Secretary of DAPC Board, by his letter cB/CL/L2/641 dated 3oEh September, 1981 authoLising R2 Eo repossess' the suit land clarified tirat trthe Government will have to iseue you with a final certificate of ownershLp aftser fLnalieat,l-on of, the administrative machinery and policy of' returniug propertsiee Co their previous owners.r ': In 1981 Sadrudin manipulated shareholding in R2 and in the Company Registry whereby he became the shareholder of 908 of t.he total shareholding in R2. R3, remained with L0*. On 27/7L/1,98t Sadrudin sold the suir land to A1 who was subsequently regist,ered as proprietor on znd August, 1982. Meantime Partiament passed the Expropriated Properties Act, L9B2 (Act No. 9 of L9g2l which came into force in early, 1983. However aft.er the purported sale of the suit 1and, in L981, Sadrudin and R3 sold thelr shares in R2 to A1 and two other persons aE a nominal value in l-982. Subseguent.ly, on 2nd Apri1, 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 AL to whom, as earlier not.ed the suit land had been transferred. During 1992, R3 instituted High Court Company Cause No.2 of L992 against A1_ and two others. In the accompanying affidavit., R3 a1leged. that Sadrudin acEed fraudulently in acguiring more shares in R2. The High Court upheld R3's allegations that. the transfer of the shares by Sadrud.ini was I 3 On lOth April , L996, the Minister rejected an applicat.ion by R2 for repossession of the suit land on the ground that R2 transferred Ehe property (to Al_) on 2'7 l1,l/L981,. Consequently R2 instituted a suit entitled Misc. appeal No.443 of 1996 against. Rl (Makerere Propert,ies Ltd, Vs Attorney General) praying for a CourE Eo order the Minister tso issue to R2 a repossession certificate. The High Court. dismissed t.he sulE. R2 successfully appealed to the Court of Appeal in Civil Appeal No.36 of 1995. That Court directed Ehe Minist,er to deal with t,he suit land under Act 9 of 1982. Meant.ime during the aame period, !996, A1 sold the suit land to Nadl.mg Ltd which i-n May, 1992 also sold and transferred the aame suit land Eo Irteera Investment Ltd. (Paragraph 10(a) of the plaint avers that At_ has interest in Ehis company). Within t* months the company also transferred the land to A2. But as result of Ehe Court of Appeat order in Civil Appeal 35 of 1996, t.he Mini_st.er himself cancelLed the previous repossession cert.ificate (No.060z) which hafl been issued to A1 . On 3/g/98 the MOFEPD issued a fresh 4 fraudulent. The Court ordered for the company register Eo be re0Ii-fied to reflect the l-972 posS,t.ion which was appar.rrefy done. There does not, upp")r to have been any appdal against that High Court. decision. A number of other suits were filed in respect. of E.he suiE tand. Thene is no need to mention them hene now. The manner in which Ehe suit was filed originally appeared as if iE was an ordinary suit buE during the hearing of the trsuittr, and on appeal , counsel for Ehe plaintiffs/appellants stated that iE was an appeat under section L5 (former S.14) of Act 9 of ]-982. This case and a few other cases inst,ituted in Courts under thaE secEion shows confusion which has persisted about the nature of the proceeding filed in the High Court challenging the decision of the Minist,er refusi-ng to grant or for granting repossession certificates to applicants for repossession or cancelling. such certificaEes aft.er issuing them. 5 cerLificaEe of repossession (No.3194) Eo R2. A1 and A2 felt aggrieved by the cancellaEion. of the o1d certifilate (0507) and the grant of iepossession of suit laird to R2, and so they prompt.ly insEituted HCCS No.918 of 1-998 against the Ehree respondenEs claiming for certain declarations and an injuncEion againsE the respondents. One of Ehe main claims by the appellants in their plaint is t.hat the Minister has no powers to cancel certificate No.0607. In their respective written statements of defence, Lhe respondents averred t.hat both appellants had no cause of act.ion 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 L982 nullified all dealings in the suiL land. When t,he suit first came up 'in the High Court before Mugamba, ,J. , f or heari.ng, dne respondengs r counsel took three points of objecEion 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 incompetenE, against. the Att,orney General (R1 ) because no sgatutory not.ice was served under Section 1 of Civil proced.ure and Limitation (Mj_scellaneous proceedings) Act, 19G9 (Act 20 of 19G9). 3. That, the subject of the suiL was res judicata because of t.he Court of Appeal decision in Civil Appeal No. 36 of 1996(Uakerere propertLea IJtd. Vg Attorrxey General). The Erial judge (Mugamba, ,l) upheld all the three points of objection and so he dismissed the suiE. (The pleadings on both sides in these proceedinge raised seri-ous allegations of fraud and claims which could have been betster invest,igat.ed during a fuller hearing) . Be Ehat as it may, the appellant,s unsuccessfully appealed to the Court. of Appea1. They have now brought Ehis appear to Ehis court. The originar memorandum of appeal contained nine grounds, to most. of which counsel for the respondenE,s objected because of their form. This Court adjourned the hearing and granted Ehe 6 appellants leave to improve formulation of the mqmorandum. When the appeal rnas called up again, Cbunsel for the appellanEs agairi'objected to most of the grounds in the amended Memorandum of Appeat. This forced Mr. Lu1e, counsel for Ehe appe1lant.s, to abandon grounds 2,3,4,'7,8 and 9 of the amended .:memorandum of appeal . He arguedr t.he remaining ground 1 separately and grounds 5 and 6 togeE,her. These are Ehe grounds the court is to consider and determine in this appeal . Before considering the grounds of appeal and submissions made thereon, however, ic is convenient to consider and dispose of a fundamenEal quest,ion which the Court raised lat.er after hearing the appeal and while judgment was pending. The quesE,ion is whether this appeal is properly before us. In my opinion this question is of fundament.al importance. We asked. counsel to address us on it. Our invitation Eo the parEies to address us on the compeEence of t.his appeal is contained in a letter of the Regist,rar of the CourE. dated L6/6/2004. It reads in parE as follows: - ,,(a) On 28/7/1998 the Minister cancelled Repossession Certificate Na.1G1Z dated 2/4/97 which had been issued to the first appeTTant, M.R.Karia. (b) The Minister issued another Repossession Certificate to the second Respondent. 7 The appeTTants appeaTed first to against tire sa-Ld dgcision of ttre section L4 (7) of tlle Expropriated 7982. Later the appeTTants appeaTed. to the Court of appeaT. This Court would -l.jke the parties the foTTowing question: the High Court Minister under'. Properties Act, \ unsuccessfuTTy. ' to address it on If the matter in the High Court was an appeaT, in view of the provisions of Artic]e 732 (Z) of the Constitution and of section 6(l) of the ..Iudicature Act, do the appeTTants have an unrestricted right of appeaT from the Court of AppeaT to this Court? In response the parties filed written submissions. Mr. L,u1e for the appellants gave det.ailed background to the dispute before making submissions on the question. The summary submission/ by Mr. I-,uIe on this point. is that: (a) an appeal under S.15 (former S.14) of Act 9 of 1992 is not an ordj-nary appeal buts an ordinary suit,. For this opinion he relied on Article L39 (2) of the Constitution, Regulation l-5 of the Bxpropriate Properties (ReposeessJ.on and Dispoaal) Regulat,ione, L983 (SI .1983 No.6) and section 39(1) of Lhe iludlcature Act, and also on two recent cases decided by this Court. These cases are Ha.bre InternatLonal Co. Ltd. Va Ebrahim ArakhLa Kaasin & Others (Civi1 AppI .14 of 1999) (unreported) and Mohan Musisi 8 This CourE is compet.enE to hear appeal as a second app6a1 without on S.6 (1) of the iludicature Act, of the Const,itution. Mr. 'Joseph Matsiko, Ag. Head, make separate submissions. He associat.ed himself wi-th the (b) (c) The case j-n the High Court had the character of a judicial review upon deprivation of property wit,hout compensaEion 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/L996 (Makerere Propert,ies Ltd vs Attorney General) to which the appellants were not parties nor upon which Ehey were heard renders t.he trial in the High Court and the appeal in Court of Appeal a nulliEy under Article L26(2) (e). He argued that this Court. should prevent a nu11it,y from defeating justice. For E.he first Respondent. Civil Litigation, did not. agreed with and fulIy 9 Kiwanuka Vs Asha Chad 2002. (unreported) Civil Appeal No.14 of and determine this . 1eave. He relied and Article ]-32(2) (d) In the event the Court finds that it has no jurisdicuion, the matter should be referred to the Constitutional Court for interpreEation under Artlcle 137 (s) (b) . submissions of Mr. Nangwala, counsel for tshe i"d and 3'd Respondents. Mr. (a) Nangwala in summary contended: - That the nappeal did not .Lie as of right lo" this Court within the spirj-t. of S.5 (1) of the ,Judicature Act. In cons-idering Ehe maEt,er under S.15 ot: Act 9 of L982, the High Court exercised an appellate, and not an original, jurisdiction. He relied on Hem Singh Vs Mahant Baaant (1935) I AIJIJ ER 355 (PC), Secretary of St,ate for India Vs Chelikan Rama nao (1915) LR 43 lnd App L92 and Uityaaa Ginners Lt,d Vs Pub1ic Health Of f icer, Kasrpala (1958) EA.339. (b) The fact that 30 days under not of suit.s. an aggrieved party has to appeal wiE,hin S.L5 is a characEeristic of appeals and (c) It is irrelevant EhaE this Court has in the past ent.ert.ained similar appeals since the issue now under consideraE,ion by t,he Court has never been canvassed in any of those ot.her cases. lndeed counsel appears to suggest that KLwanukara caEe (supra) was wrongly decided. Act 9 of 1982 has been implemenEed for jusE over twent.y years norr. It. would appear that a number of cases similar to this one have been brought to this Court, under the provisions of t,hat Act and were decided as normal 2d 10 Clearly t.his subsection gives t,o parties an unrestricted right of appeal t.o this Court in civil causes emanatj.ng from Erials by the High Court. Appeals are not restricted or made conditional on any procedure. 11 appeals. Therefore if we have Eo upset those decisions the matt,ers raised by',Ehe question have to be given'fl.ue consideration. wj-th i'espect it is not correct to sa1) as argued by Mr. Nangwala, that this court should ignore'its past decisions of cases similar to the present. tni" indeed is Lhe t,ime . to correcE past errors if there are any at all. .: : General appellate jurisdiction of this Court is conferred by Art,icle L32(2) of the Constitution. Clause (2) Ehereof reads as follows: - a An appeal sha77 7ie to the Suprenre Court from such deciaTons of Ebe Court of AppeaT as may be preseribed by Law.i In civil cases appeals come to t.his Court via the Court of Appeal because of subsect,ion (1) of S.5 of the iludicauure AcE. The subsect.ion reads this way: "6(7) An appeal sba77 7l,e as of right to tDe Supreme CourE where t&e Court oE Appeal confLms, varies ot reverses a J udgmen t or order iacTudiag LnterTocuEory order glvet by the High Court Ln the exerclse of its orLginaT Jurisdict,ion aad eltber coaf Lrmed, varl.ed or reversed by the Court of AppeaT.a Subsection \,2) of S.6 regulates third appeaLs which emanate from'Courts presided over by Chief ilgistrates or by Magist,rates Grade I. Such appeals come. 'to t.his Court only with leave of eit.her t.he Court of Appeal or of E.his Court. I. am satisfied that the presenL appeal is noE governed by Lhe provisions of subsection (?). The question raised and that needs court's answer is whether the present appeal fal1s under the appeals envisaged by subsection (1) or any other l-aw authorising appeals to Ehis Court. Mr Lule contends that it does. Messrs. Nangwala and Mat.siko, on the other hand, hold the contrary views . Mr. LuIe argued strongly that the compeEence of t,his Court t.o entert.ain this appeal has to be determined on the basis of the character of the proceedings before the High Court from which t,hls appeal arose, the nature of the proceeding as provided for under Act 9 of 19g2,and the Regulatione in S.I 1.983 No.5, E,he kind of powers tLre Minist.er exercises under the Act and also on t.he basis of other sEaEutory provisions and laws relating Eo interest in and title to land within Ehe contexE of this case. I find it. unnecessary to consider the 1ast parE of this submission because Mr. Lule himself conceded right from the High Court t.hat the case was inst,it,uted under S.15 of AcE 9/82. t2 Let me start with s.15(1) of the Act. It reads:. u75(7). Aay'\ person who is aggtieved by, any decision mafe by the Mlnister under t'his. AcC, ntd,f t within' thirty daya from the dace of comnunication of the decisioa to him or her appeal to Ehe High Court againsE that decisionu. It. is argued t,hat the word "APPEALT as used in the subsecEion is not used in a technical sense of a njudicial proceediagr but rather its is used in the ordinary sense meaning nCIIAIJL,ENGEIT. For that opinion Mr. Lule relied on the words employed in framing Regulation 15 which reads as follows: - n75. The Ru.?,es of CtviT Procedure governing Lnslitutioa of suiEs in Ebe High Court, sha7L apply to appeals made under secLion (75) of the AcEn In this connection noEe should be taken of the definition of a traultn as "a1I proceedings commenced in any manner prescribedr': See S.2 of the Civil Procedure AcE. I note that neither AcE 9 of 1982 nor RegulaEions in S.I. 1983 No.5 define the word naBPeaIrr. Nor does the Civil Procedure AcL. According to Mr. Lule if t,he decision of the Minist.er were considered a judicial decision appealable to the High Court in Ehe same sense, for insEance, as an 13 appeal lies to the tliSh CourE from a. Chief MagistSate's decision in a civil qase or from a tribunql exercising judicial powers aqd subject to at 1east. . the basic judicial procedure, Regulation 15 would'have been worded differently. 'It would instead say '"the rufes of CiviT Procedute governing instieuelon of appeal"s in the High CoutE.a Learned counsel contended that in hearing an appeal- against the Minister's decision made under S.L5, the High Court is enjoined to exercise its jurisdiction to determjne Ehe matter by trying the ilAPPE;AL" by applying the ru-l.es which appiy to an ordinaty civiT suj t instituted under the Civil Procedure Ru1es, but not those Civil Procedure Ru1es whi-ch govern ordinary civil appeals in the High Court. The trial of such a suit, contended learned counsel, would result in appeals ending in Ehis CourE. Therefore Ehis Court is competent to determine t,his appeal as a second appeal . Since it is not argued thaL the Ministser is a court lower than the High Court, I do not think that the provisions of Clause Q) of Art.icle 139 relied on by Mr. L,u1e are relevanE Eo the question I am considering now. t4 The clause reads: - "(2) Subject to the provisions of this Congtitution and any other law, the decisions of any court Tower Ehan the Eigh CourE sha.lJ be appeaiabJe to the High Court.u Now; I have noted the use of the word raulttr in secLion 14 which immediately precedes s.15 in which the drafLsman pref erred !o ,-,se the word rappealir instedd of trsuen ' I fait to appreciaEe any rational basis for.'the distinction createdbytheuseofEhetwowordsintwoseparatebutr succeeding sections in the same Act. The provisions of section 14 appear under tle heading legal proceedinga and ,suit,' are used to signifY Ehe roceeding in the High Court. On 15 appears under the heading 'TAPPEALTT and in its subsection (1) Ehe words tr appeal to the High Courtr are emptOyed. At first I thought that the two words were used deliberatety in the subsection so LhaE rrEo sue" and ntso apleaItr would respectively connoue institut.ing a trCivil SuLt'r and a "Civil Appealr in the ordinary way. Howevetr, in addition to suggesEed , 1aw authorities, (infra) some s to t.he use of the two words. of Slmonyms and Antonl,ms gives b rrAppealtr as address, invoke, entreaE, implore, supplic]ate, sue and petition' The same dictionary gives the sylonyms of the verb rsuetr as to prosecute, accuse, take to court. It appears therefore that the two expressions i.e. ttappeal- to courtn and trto suetr, mean taking to CourP. Lhere the words 'tsuer and filing of an originating P the ot.her hand, section definition under Englistl dictionaries Provide clue The Wordsworth DictJ.onary the synon)rms of the werl In Vol .37 of Ha1eburyrs Ll definition of a judicial an application to " ! awg of EngJ.and, 4th Ed, a general appeal (para 5zz) is said to be uperior Court or tribunal to 15 reverse, vary or set a side the judgment, order, determination, decision or award, of an inferior court or tribunal in the hierarchy of Co\rrts or tribunals on Lhe 'ground that it was wrongly made or that as a matEer of justice or law it reguirea to be corrected. In so far as ordinary judicial appeals are concerned this definition is satisfacEory 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. AnoEher English authority is St,rouds iludicial Dictionary, 4th Ed, vo1 .1-. At page 155, it gives Lhe following Ewo meanings of trappeal'r, in Court among oEhers which meanings are similar to thaL given above in Halsbury's Laws. First it states that nTo appeal" js the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court be7ow..-..|t SecondTy ,,Art appeaT" strictly so ca77ed is one in which the guestion is whether the order of the court trom which the appeal is brought was right on the materia-?.s which that court had before jt. " These meanings t,end to support the view that a judicial appeal is not the one int.ended in S.t5 because of Ehe use of the expression rr appeal. to the lli.gh Court.r' With respect I do not agree with Mr. Nangwala's conLention that the 30 days limitat.ion period implies 16 Ehat the appeal is an ordinary judicial appeal . I think it .ryou1d be a misnomar to describe a suit instituted undbr S.15 to challenge Ehe Minisler,s rejectj-on of an application for repossession as .'an ordinary judicial appi:a1 MTr. Lule further relied on t.he .; t,wo decisions of this CourL (Habre InternatLonal and Muel"sl Kiwanuka) (supra) to support his contenEion that the character of the appeal envisaged by S.15 is that of an ordj_nary suit. In my opinion Habre InternatLonaL decision is not. quite helpful . There the appellant. sued the former owner of an expropriat.ed property for compensat,ion in respecE of improvements carried out. on the building repossessed by that former owner. The High CourE decision granting relief to t.he appellant was overturned by the CourE of Appea1 whi-ch held that the Hlgh Court had no original jurisdiction Eo try the suit. On appeat Lo this CourE, it was held that the former ownerrs liability Eo pay compensation lay under section Ll_ of Act No. 9 of g2 and not under S.L5. Indeed in his lead judgment, Karokora, ,JSC, held that: n- there was no decisLon by the Miaister made uader the Act Ehat aggrieved the appeltaats against which they could go to t.he 6Iigh Court by way of appeal uader sectjon t7,(l)j of the Act.' L7 court doubted any judicia\ 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 provjsion of,: I S. lS ( I ) ] of Ehe Expropriated ; Properties Act to the effect that a persorr aggrieved by the ltinisterrs decision Act,, nay appeal to the lligh cour?, construed as in any way affecting the originaT jurisdiction of Ehe High Cour from one court under the cannot be thereby of 7aw t ft seerns to &e that the Minist,er is not given judiciaT appeal aB to another. The definitions I have jusE quoted. appear to support t.his view. As already not.ed, t,he claim in t.he suit was for compensat,ion, a matter governed by S.LL of the Act. So thls Court. held that the CourE of Appea1 erred in holding that because [s.15(]-) I confers Dapperrater jurisdiction on the High Court, t,he High Court could not exercise its original jurisdiction to try the suit,. fn 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 Musiei KLwanukats sase (supra) . At page 14 of his typed judgment, he said, 18 It was in the concurring judgment of Mulenga, ,JSC, where, in relation E.o S. t1S(1)1,'.the learned ,Justice of Supreme., It may be true to say, as lmplied in this passage, t,hat sometimes a legislation providing for an appeal Eo a Court against a judicial decision, a quasijudi.cial or an administratiwe decision arso sets out a procedure on how such an appeal may be insEituted. However the absence of procedure, or of a procedure for appealing, is itself not sufficient evidence Ehat no judicial appeal was intended by the legislature. Whether or not a legislation provi-ding for exercise of a power provides for a xjudicial appeaLtr wi11, in my opinion, depend on the wording of the particular legislation and Ehese proceedings support t.his view. 19 ',I would reiterate what I said in lIabre International Co. Ltd.,,Vs, E.A. .Kassak & Others..-.-.-.-... that "e]\I .ipp.gA.r," und.er 5.74 of the Act is not a jwdicial appeal . ?lre Miaister in tbe exercije of power vested jn him by the Act, makes a&njnjstratjve decLsions. Sectjon 14 of the AcC djrects that a persoa aggrieved by such a decisjon may appea-L to the High Court, within a period of thirty days. Apart from EhaE Eime limit, Ehe Act does not stJpulate any special procedure for instituting the appeal or chaTTenge against Elre MinisEer,s decision- The chalTenge can be done in arr ordinary civiT suit. ,, The decision in Heur Singh (supra) on which Mr. Nangwal_a reI1ed appears to sdpport t.he appellants. The case'arose in India, trom tnrJ\e appeals originating from dec)sions of an administrative tribunal . From the tribun'ar the case went to the High court, which set aside the decisions of the t.ribunal - EvenEually there was an appeal to t.he Privy Council wltere the respondents chatlengtsd the competence of the two appeals. The priwy Council reviewed a number of decided cases including secretary of State for India (supra), before concluding ghat the jurisdiction conferred upon the High court of rndia was intended to incrude the new subject matter as part of the ordinary appellate jurisdiction of the High Court, and t.he case was within the general principle laid down by viscount Hardane in Natr.onar Telephone co. vs post Master General (l-91-3) A.C 546 at 552 that ,,when a question is stated to be referred to an established court without more, it..-............ imports that t.he ordinary incidents of the procedure of that court are to attach and also t.hat. any right of appeal from its decisions rikewise attaches,,. In Mj.tsyana Ginnere Case (supra) a case originating from this country and which is of some interest., the privy council- held that since the appear to the District court (against a notice under the pubtic Health ordinance by t,he Medicar officer of Health) was not commenced. in any manner prescribed by Rules to regulat,e Ehe Civil Procedure of the Courts, t.haE appeal was not. a suit. 20 2L That holding distinguishes ldLtyana case from t,he present one. In t.he present, qase, RuIe 15 (supra) stipulates that Civil Procedure \Rules apply in inst,ituting dn ttappealrt under S. 15 . I fail to see any sound reason why a party seeking for compensation under S.12 of Lhe Act for improvement made on an expropriated pfoperty can proceed by way of1 o.n ordinary suit whilst a party seeking to challenge a pure ministerial decision under S.15 (1) has to f1le an appeal . IL seems to me Ehat in the Iight, of Rule L5, and the definition of trault,n (supra) challenging a ministerial decision is by way of suiE even if the AcE describes Ehe challenge as an appeal . It is probably the better procedure because it enables parties to call wit,nesses, or adduce evidence, to support their claims. Furthermore, neither S.l-5 nor any oEher Provision in Lhe Act indicates how far an appeal instituted under S.15 (1) can proslress in t,he Court hierarchy. In otherwords the secEion neit.her prohi.bits nor expressly al1ows an aggrieved party to take or refrain from taking an appeal up to this Court. In the circumstances, I think t.hat we have jurisdicEion to hear and det,ermine the appeal . It is now not necessary Eo dea] with the last of Mr. Lule's argument.s on the question. I wi-1l now turn to the grounds of appeal and I sEart wit.h ground one, whj-ch is formulated in these words: - The Court of Appeal erred in Iaw t,o hold t,haE e.A No.3G of 1996, to which the appellantg were not parties applied tso the instant case and operated the appellants .', as res judicata against, 22 On this ground, Mr. Lule's submissions are a'reflection of the avermenEs in the plaint, namely that. none of the ingredients of ree judicata are present because: - (a) Neither .pf Ehe appellants was a parqy to the proceedings in Civil Appeal No. 36 of 95 nor did any of Ehem claim through a partsy to that appeal . He cited several aut.horities in support of his arguments. Later in rejoinder to Mr. Nangwala's counEer arguments, Mr. Lule cont.ended that in this appeal the issue is not on the sEaEus of, but on interest in, the suit land. So no quest,ion of a decision in rem arises to bar the appellants. (b) The subject mat.ter must be directly or substantially in issue in the dispute. (c) Part.ies musE have litigat,ed under t.he same title. (d) The CourE of Appea1 decided appeal No.36/96 contrary to law and Eo the facts of Ehe case. The case cannot, therefore, operate as res judicat.a. Learned counsel argued that the IIOFEPD originally returned Ehe suit land to R2, a company, and not to Sadrudin, an individual, yet the CourE of Appeal found to the Contrary. He relied on Unit,ed Aseurance Co. L,td. Vg AEtorney General (Uganda Court, of Appeal Civil Appeal No.1 of 1986) f or t.he view, which, as a general principle, is correct, EhaE a direct.or can act for and bind a company. For t.he 2 that: (a) The "d and 3'd respondents, Mr. Nangwala contended. Court ot Appeal properly found thai, its previous deci5ion in Civil Appeal No.35 of'199G bound t,he appellants even though the appellants were not part.ies thereto (b) This Court can not set aside Civil Appeal No.36 of 1996 when that appeal is not a subjecE of Appeal here. He relied on dleraj Sharrl-ff Vs Store (1960) EA 374 and Hulgburyls fJaw of Eng1and, 3'd Ed., VoL. 1-5 paragraphs 351,366 and 357 where a dist.inction is made between a judgment in rem and a judgrment inter partes and contended that a decision in rem is conclusi-ve against strangers. (c) The decision of the Court Iand vested in Government, of Appeal thaL the suit bound AI and A2. (d) Res judicata has the same effect, as a judgment 1n rem. I will first discuss the meaning, operation and effect of the plea of res judicata. The respondent,s pleaded this defence on the basis of Ehe decision of the Court of Appeal in Civil Appeal No.35 of 1996 (supra) . 23 Mr. MaEsiko, Princlpal State Attorney, representing Rl , adopted t.he submissions of counse] for R2 and R3. The doctrine of res judicata is set out in S.7 of the Civil ProcAdure Act in the foll-owing words',- tr.tVo cotrrt shal-7 try any suiE or issue 'in which the rnatter' directly and substanLiaTTy d.n issue has been directly and, subsEanEiaTTy in issue in a former suit beEween the same parties, ot betweea part.ies under whorn they or any o.f then cLaim, Titigating under the sane title, in a court competent Eo Ery such subsequent suit or the suit 7n whieh such isgue has been subeequently raised, and }rae been heard and flnaTTy decided by suclr coutt. " The provision indicates that t.he following broad minj-mum conditions have Eo be satisfied: (7) There have xo be a former sujt or issue decided by a competent court. (2) The matter in dispute in the former suit betl,veen parties must afso be directTy or substantiaTTy in dispute between the parties in the suit where the doctrine is pleaded as a bar. (3) The parties in the tormer suit shoufd be the same parties, ot parties under whom they or any of them claim, Titigating under ttre same titLe. In HCCS 553 of 1965 (Iemail Karshe Vs Uga:rda Transport Lt,d) caaes on Civtl 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 24 There Civil is no doubt Appeal 36 of that neither appellant was a party to r_996. As already noEed, in L982 t,he DAPC Board through a Mr. ,I. Ssonko, its Ag. Execut.ive Secretary, purported Eo return the suit land to R2. The application for repossession had been lodged by Sadrudin, admittedly one of the Directors of R2. Sadrudin sold t.he sr.it land Lo A1 who on 2/B/L982 was registered as proprietor. The suits land was again t.ransferred Ewice before it was sold to A2, it, being the fourt,h transferee. 25 CourL of competent jurisdict.ion between two persons over the samp subject matter, neither of t'(re parLies would be allowed to retitigate the issue alain or Eo deny EhaE a'decision had in fact been given. subjects to cerEain'conditions. In my opinion ttris is a correct summary of S.7. As summarised earlier, in 1991, R3, one of tshe Pirani brot.hers 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 Ehemselves a: so Direct.ors of R2. He successfully challenged Sadrudirrts manipulat.ion of shareholding in R2, by institut:.ng High Court Company cause No.2 of 1992 (Amin Mobarned Abdullaziz PiranL Vs Mansukhlal RanJt KarLa (A1) and 2 others Thd High Court (Kalanda, ,J) concluddd that the t.ransfer of'shares carried out. by Sadrudin.iuas fraudulent. The CourE ordered Lhe Registrar of iompanles to rectify Ehe company records to reflecE Uhe position as it. was irr 1972, meaning thereby EhaE a1:1 the Pirani brothers remained shareholders in R2. AfLer that court order, R2 filed an application to the IdOFEPD claiming for a repossession certificaE.e. The former Minister, Mayanja Nkangi, rejected the application on grounds that: Itcovernne[t, had through the Board already reEurned the propertsy tso Rzn. R2 appealed tso Ehe High Court against the decision of the Minister (See Makerere Propertiee Lt,d Vs Attorney General), under section 15 of Act No.9 of 1982. One of the pleadings filed in the appeal in Ehe High Court was an affidavit sworn by R3 setting out certain fact.s one of which was that no repossession certificate under Act 9 of 1982 had been issued to R2. There was apparently no evidence by way of affidavit or oEherwise to challenge that. assertion, but the High Court upheld the decision of Ehe Minist,er. R2 appealed to t,he Court of Appeal under Civil Appeal 36 of 1996. The parties in the High Court and in Court of Appeal were Makerere Propert,ies Ltd Vs Attorney General . (i.e. R2 Vs Rl). 26 The High (a) Couft of Appeal upheld the appeal and reversed the Cdurt decision. The former Court',found that: ?he suit Tand had never been returned to R2 but wa's insEead wrongfuTTy returned t'o one Sadrudin who, though he was one of Rzts Directors, was Dot R2 itself. I (b) That Sadrudin had frauduTentTy repossessed the suit Tand before he frauduTentTy soTd and transferred it to AI . So the fraud affected AI's registration as a proprietor. (c) That even if there had been no fraud, under S. 7(7) ot Act 9 of 1-982, repossession by Sadrudin and the transfer to AI was nuTTified, sjnce the transactions were both effected between L973 and 2J-/2/798i, the Tatter date is when Act 9 ot 7982 came into force. (d) When in 7996, R2 appTied for repossession of the suit 7and, the suit Tand had not been deaTt with under Act 9 of 82 and it was stil.L vested in Government. So the Minister erred in rejecting R2' s appTication for repossessjon. (e) fhat the decision of the Supreme Court jn Fa.mous CycTes Agencies Ltd A 4 others Mansukh-7,a1- Ranlji Karia & 2 others CiviT Appeal ilo.15 of 1994 27 CiviT AppeaT No.l6 of L994 did not decide the ownership of the sujt Larrd but rather it decided the issue of who was "ittitt"a to receive rent from tenants in tfte suit'land. Mr.LuTe has attacked finds (a) to (d) However it is clear that neither of the two appellanLs was a party to the suit, in the High Court. challenglng the Minister's refusal Eo grant repossession cert.ificate to R2 nor were t.hey parties Eo the appeat from thaE. decision to the Court of Appeal in C.A.35 of 1996. It is possible to argue that as Al- had already sold the suit land his interests could not be affected and that, on t.he face of it t.he interests of A2 were affected even though he was not a party. These are matters which coutd have been properly investigated during a fuI1 trial . There is no doubt proceedings up Eo t.he R2 was a party to of Appeal , where Civil that Court those Appeal 2A With respect I must poigt ouE that. the holding oF .: references by Ehe Court of Appeal in C.A. 36 of 1995 that, property was returned to Sadrudin appears incorrect. It appears that the Departed Asians property Custodian Board, E.hrough a Mr. .I . Ssonko, the Ehen Ag. ExecuEive Secretary, returned the suit land to R2 by a letter dated 3019/1981 t.o which I have already referred. It may be Sadrudin was Lhe moving spirit behind the process of repossession and eventual sale of the suit. Iand. 36 of 1996 ended. It is not evident from the resultant j.udgmenE of the CourL of Appeal ,whether eit,her appellanE as aware of the proceedings of'rwhich the appeal j-s the .Iast. The guestion t.haL needs to be ahswered, therefore, is whether or not both the High CourE and or. Ehe Court of , Appeat erred in holding in thqir respective decisions giving rise tso the present proceedings that the decision in Civil Appeal 36 of L996 consEiEutes res judlcata and is applicable in these proceedings. If it applies, it. bars Ehe appellants from prosecut,ing tshe suit which Magamba, ,J., dismissed. At the end of his ruling Magamba.il, staEed that: DThe decision la Ctv77 AppeaT No.36/96 as I bave obeetlr,ed ear77er, dealt wtth Che statue of Ehe property and t.he eatter should be regarded as res judl.cata". Here the learned Erial judge relied on only the pleadings and submissions of counsel for both sides and the judgment of the Court of Appeal in Civil Appeal No.35 of L996 for his view that the suit land is res JudLeata. There was no evidence to show any relationship between the appellants and the parLies in that appeal . In my opinion t.he proper practice normally is that. where reE judicatsa is pleaded as a defence, a Erial court. should, where Lhe issue is contested, try that issue and receive some evidence to establish that t.he subject matter of the dispuLe between the parEies has been litigated upon 29 between the same claim: part ies , or parties through whom they Be that as it may, in'the Court of Appeal, ground 2 of t.he memorandum of Appeal contained the complaint, againstr t,he ruling of Magamba, ,J., that the suit. was. res judlcata. The other.; t.wo points were on misjoinder of parties and lack of a cause of action against R2 and R3. In the CourE of Appeal , the lead judgment with which the oEher numbers concurred was given by Mukaaa-Kikoayo, DCiI . Mr. Lu1e, who represented t.he two appellants in the Court of Appeal had argued apparently forcefully, as he did before us, that neiE.her of t.he appellants was affected by t.he doctrine of res judicat.a because none of them was a party to the original HCCS No.443 of L996, the offspring of which is Ciwil Appeal 36 of 1996. He further argued that even if AI was affected by fraud, as alleged in the def ence of R2, A2 was not t.ainEed by t.he alleged f raud as the 1at.t.er was a bonafide purchaser for value and withoutr notice of any defect in his predecessor in tit1e. The learned Deputy Chief ,Justice discussed the j.ssue of res judicata this way: .,ZE is true that the parEiee ia Civil Apeal IVo.35 of 7996 aad thjs appeat ,0ay Dot be Ehe sarre but the subject of E&e dlepute. Counse.L for the respondents raised the igsue of res judicata tn relalion to the status of the gujt property. Thie CourE in Civil Appeal lfo.3d of 3() 7996 ruled on the status of t}re suLE property which decision was bind.tngr on a77 the persor2s who had ineerest in the suit property even if Ehey were not parties..' MosE ifiportant of al7 Ehe fearned trial judge was bound by the deci.sion ot the Court of Appeal in CiviT Appeal tVo.35 of 7996 which was a superior Court. The Court of Appeal, having rufed that the suit property has been vested in the Government under E.P.A, there was no way the High Court eould have reversed iE since EJre suit properby waa the sarte in both cases. Even if Ehe Court of Appeal had reached a wrong decLsion the onTy course oper2 to tlre appelJant would hawe been to apply for a review or appeal to the Suprerre Court but aot to institutc proceedings under 5.74 of tbe Expropriated Properties Act.n With greatest respect, assuming t.hat by "appellant', Ehe learned DC,J refers Eo Ehe present appellant.s, t,he learned DCJ was in error t.o suggest Ehat, Ehe appellant,s could appeal . They had not participated in the appeal, so they had no righE of further appeal . Probably t,he option would have been for the appellants to seek to set the judgment aside by a suit or they could have applied at the trial stage to be joined in the suit. 31 Later the learned DCJ further referred to the ruling of the High Court where Magamba, .J., had relied on'f,he said Civil Appeal No.3\5 of 1996,and opined that. the Eourt, of Appeal laid all Sioints in t.he maEter concerning.ownership of property to rest when it, sLated that: "any purported return of the suit property to S.A. Pira4i in 1-98L and the subseguent registration of tbe property into the names of Mr. Karia were both nullified by Act 9 of 1982 as they were both effected between 7973 and 218t February,7983-" The learned Deputy Chief .Tustice then concluded: "Clearly as tshe CourE of Appea1 dealt with the at,atus of the euit property alt,hough the parties were not exacEly the same the issue of ownership of the suit property was set,t,led and operated as res judicata against the appellants interest in it...............---. .......the appellant's appeal would fail on that ground aLone.tr Although this appeal is not from Civil Appeal 36 of L996 Ehere are two pointss in the decision of the CourE of eppeal abouE which I should make observaEion. First, t,he court held that E,he property was returned t,o Sandrudin and not to R2. That appears to be incorrect. The letter of iI.Ssonko dated 30/9/t981(supra) whose presence in the record of proceedings was deprecated by 32 Tlr{nomuJuni, ,B', and to which r have arready referred was addressed to R2 . .Tf , as it 1s st,ated in the.. said judgment, opposing'Eounsel in the High court suurtitteo Ehat, trMy Learned frLend'tendered a tet,t,er dated 3}/g/gLn, Lt seems to me t,haE. the appellate court should have acted on t.hat evidence unless there is clear evidence that in fact t.he letter was not tendered or unless the tendering was successfully opposed. f am aware t,hat f am not considering an appeal against the decision in C.A.36 /gA. So I won,E go any further than that. What f can say about the letEer, which was annexture KC 2 to the plaint in these proceedings, however, is that. the authority given in t,he letter to R2 to repossess the suit land was trprovisionaltr pending finalisation in fuEure. This provisional authority was supposed. to be valid.ated. by an actual transfer. Annexture KCf dated 2/04/1,ggt appear to have intended Eo validat,e the provisional Eransfer, but in fact it purported to auEhorise not R2 but Af to repossess t,he suit, land. Even then, Af had already sold and transferred the suit 1and. ThaE of course is where t.he problem is. What.ever the case, the effect of the decision of E.he Court of Appeal in Civil Appeal No.36 of 1996 is t.hat ir nulrified rhe said certificat.e dated 2/14/tgg:- when the court d.irected the MOFEPD to deal with the suit land under Act 9 of 1982. Perhaps r ought to point ouE EhaE the certificate was nullified twice. Besides that courtrs nur.lification in 1998 of the certificate (No.OGOZ), earli.er on g/7/LggL, 33 barely three months after the certiflcat.e was issued, a Mr. Kabagaqbe, on behalf of the Verification Commit.tee in the Minisrly of Finance by 1et,rer, ref . VCZ/COU/963/gpIR, advised M'/s Mulira and Co. Advocates,. that the same cert.ificate had been cancelred because it was obtained fraudulently and that the property would be returned to R2, t.he fightful owner. The facE of t.he:cancellation was indeed advertised in the Uganda cazetEe of g/LL/tggt (Vol . LXXXIV No.49) . The said letter and a copy of the Gazett.ee were annexed Eo R2's written statement of defence. In spite of the two nullifications of the certificate, AI appears surprisingry to have retained the nullified cerEificate which he caused to be entered on the certificate of tiEre on to/7/L996t A ful1 trial would have thrown more light on Ehese matters , Be Ehat as it may, in her judgment, the learned Deputy Chief Justice correctly found that the part,ies t,o Civil Appeal 35 of L996 are different from parties in this case. This is so because in appeal 3G of 96, R2 was t.he appellant whereas the respondent there was the present. R1 . This time round E,hose E,wo part.ies are on the same side. So does the doctrine apply to bar the two appellants from prosecutsing t.hese proceedings? The trial judge and the Court of Appeal found t,hat Ehe doctrine applies because C.A.36 /9G decided the status of the suit Land even though neither of the appellants was a parEy. 34 So the two court did noE in reality decide the issue of res judicata. I have said already that in order to establish rea judicata, this'issue should have been Eried. As neither appellant was a party to the suit and the ensuing appeal 36/Lgg6, in my opinion Ehe cour4/ below er,red to hold thaE A1 and A2 vrere barred by res judicatrg. I would uphold ground 1-. I sha11 consider Ehe effect of C/A 35 of 95 on the staEus of Ehe suit. land Iater. Grounds 5 and 6 state as fo]1ows: - In addition Eo his arguments before us, Mr. L,,uIe adopted the written submissions he had filed in Ehe Court of Appeal . In thaE Court t.he corresponding grounds were No.4 and No.5 although there, these were argued t,ogether wit.h ground 7. 35 (5) The Courts of Appeal erred in law wtren they held that Ehe appeal euit dieclosed no cauge of action against Ehe 2od and 3'd respondents aa none of them had made the decision under S.14 of the Expropriated Properties Act......'... (6) The Court of Appeal erred in law and fact to hold that, the aBpellants were not aggrieved paruiea because ats the date of Ehe MLnigterIa decision tshey had no interest in the suit property- The (4) Lwo grounds were worded as follows: - ThaE the -Learned judge mjsdlrected himsel,f to the fd,cts of Ehe case when he held that there was no cause of action whereag the jssue of Ehe appeal was whether the 7"' appellant r4'as a former owrrer and couJd pass tithe to the 2nd appellanE pJus other :identified jssues which warraatsed a futl trial on evidence and merits of the case. (5) The -Learned triaL judge erred in law and rnisinterpreted Ehe facts and pleadings to opine thaE the appeJlants were noE aggrieved by the llinisters decision and ChaE both appellants &ad no interests anad rights exercisa.ble under S.l4 of Act 9 of 7982. rn hi-s written arguments on these grounds in the court of Appeal, Mr. Lule contended t.hat S.l-5 of AcE 9 of 19g2 is wide enough t,o confer the righE of appeal to any person whose rights are affect.ed by the Minist,er's decision. Learned counsel relied on Moha.ed Arribhai vs w.T.Bukenya and DAPC Board (S.Civi1 Appeat No.56 of L995) (unreport.ed) for the view that a person suffers a legal grievance if Lhe decision of the Minister affects hls inEerest even if he or she is not a part.y to the applicaEion to Ehe Minister for repossession of expropriated properE.y or is not former owner of the expropriated property. So such a person has a cause of action. Counsel argued that Civil Appeal No.36/96 36 affected the appellantrf interests yet they were not, parties'to the case. Furt.her the'decision of the Minister\Eo cancel the 1"E appellant's JbrEificate (0607) of reposisessi-on and the issuance of a nbw cerE,ificate Eo R2 as a consequence of which A2's t.itIe in the lands RegisEer was cancelled were decisions which aggrieved both aBpellants. Both were therefore.;entitled Eo appeal under S.1-4 of Act 9 of 1-982. Mr. Cheborion, Ag. Commissioner for Civil Litigation, who made written submissions on behalf of the first respondenE, in Ehe Court of Appeal, supported the decision of tshe trial judge and argued thaE the two appellant.s had no causes of action. For the second and third respondents, Measrs. Nangwala, Resida & Co. Advocates, in their written submissions in t.he Court of Appeal , supporEed the decision of the trial judge t.hat the Ewo appellants had no causes of act,ion primarily because neit.her R2 nor R3 made any decision under act 9 of ]-982 and so there could be no appeal under (S.15) against. the t,wo respondents and neither could any of them be held responsible for the decision of the Minister. Counsel further argued t.haL on the facts of the case t.he Ewo appellants had no right of st.atut,ory appeal under s.15. In the trial court objection had been made on behalf of R2 and R3 that. the plainE did not disclose a cause of action against eit.her of them. The reasons raised then were t,he same reasons raised in Court of Appeal . In 37 upholding that objection, Mugamba, .T, referred to the .,avermenus in paragraph 7 (a) tq 7(e) , l(g) Eo (m) of the 'r plaint, the former being compli!.nts und.er Act No. 9 of Bz ' against the MOFEPD before the judge held that nothing ' averred in the plaint showed that the Ewo appeltanEs enjoyed a right which was violaE.ed by eit,her R2 and R3 or both. H€, therefore, held .that. there was no cause of acEion against these two. The learned judge also found. that the appellants had no justificaEion in joining R2 and R3 in an appeal under S. j_5 because there was no allegat.ion in the plaint showing that either R2 or R3 caused grief to Ehe (plainEiffs) appellants. purther, Ehe learned judge found thaE even R1 lras wrongly joined and that the act,ion against him was misconceived. On ground 4, the learned Deputy Chief Just.ice accepted the cont.entions of counsel for the respondents and held that there was no cause of action against, R2 and R3 because neitsher of these two made a decision under Act 9 of 1982. It was the Mj.nister who did. On t,he complaint in ground 5, the learned Deputy Chief ,Justiee held that in the appeal, "the appellants' interest in the suit tand when the act of the MinisEer complained of was made, did. not exist. The two appeltanE,s were not aggrieved part,ies because they had no interest. in the suit land aE. t.he time the Minister made his decision. The learned Deputy chief Justice staEed: 38 nBoth appe-7,l,ants had no jnterest in rern to qtaTify as "AGSRIEVED PERSONST," ?he reasone for so holding are t&at at the iEme the Minisler's decision canceTTing aTTocEtion certificate No . 0 6 07 to A7 , A7 had alread,y sold the sui t property. Further C/A 36/96 decided that AI did noE acquire a valid title.., Furtherttore A2 did noE acquire a valid tiEle from those other persons Eo whom A.r had eoTd and transferred the suLt property.u Clearly these findings were made on basis of submission based on C.A.36 of 1996 where t.he appellants were not parEies. Mr. L,ule crit.icised Ehese conclusions when he argued Ehe appeal before us. According to him it was necessary t.o join R2 and R3, in the proceedings by virt,ue of Order 1 Rule 10 12) of the Civil Procedure Rules. He relied on Departed Aeians Property Cuetodian Board VE ilaffer Brothers Ltd - Civil Appeal No.9 of 1998 (S.Ct) (unreported), Ladak.A.Mohaned HuseeLn VB. erLffltshE Kakiiza e 2 OEhers, S.CE Civil Appeal No.B of 1995 (unreported) and Mohan MusLsL Kiwanuka Va Agha Chand S.cE. Civil Appeal No.4 of 2002. Again Counsel crit,icised the Court of Appeal for holding thaL in Civil Appeal No.36 /95 the title to land of Ehe Ewo appellants was nullified. He contended Ehat in 1998, MOFPED had no power to grant repossession under Act 9 of 1982. If MOFEPD wanted Lo cancel repossession certificate 39 of AI , MOFEPD should have gone to Court under Registration of Titles'Act. Learned counsel therefore submitted Ehat repossesiion certificate of Ar is sti-iI valid, while that given to R2 is invalid and t.hat N2 acquired good title to Lhe property afLer purchasing it. Counsel again reLied on MuaLsi Kiwanuka (supra) and Habre IulernaElonaL Lt,d. Vs.: Francis Rutagara.tna, S. Ct . ciyil Appeal 3 of 1999. Mr. Nangwala for R2 and R3 supporEed the decision of the Court of Appeal holding that neiEher of t,he two appellants had a cause of action. Learned counsel reiterated the arguments he had made in the court below. He contended that neither appellanE was an aggrieved party under S.1-5 of Act 9 of 82. He relied on Yahaya Kiriisa Vs. AEtorney General , S.Ct, Civil Appeal No.7 of L994 and Fanous CyIe Agencies Ltd. and 4 Others -VE- Manaukhlal Ramji Karia S.Cts. Civil Appeal No.16/94 (unreported). Mr. Matsiko for Rl adopted Ehe argumenEs of Mr. Nangwala. In rejoinder Mr. Lule soughE to draw a distinction between a judgment in rem which determines t.he st.atus of the properEy. He argued that in this appeal the issue is int.erest in, and not sEaEus of, the suit property. He relied on Halsburyrs lJaws of Euglaad paragraphs 351 and 352 and Fanoug C1tcle Agency Ltd (supra) . 40 These grounds raise the following three matserial points: o The effect of Lhe decision'.in Civil Appeal No'36/96' Did it decide the status of the suit properEy or did its decide inLerest in the suit'.property? Since neither of the two appellants were parties in Civil Appeal No'36 of 1996 is either of Ehem affecEed by LhaE decision? a Did either A1 or A2 or boEh of tshem have a cause of action against. either R2 or R3 or both' In oEher words was iL proper or not proper Eo join R2 and or R3 in the suit? Did eit.her A1 or A2 or both of them have inEerest in the suit property at the time the minister cancelled certificate No.060? in 1998 before he issued a fresh repossession certj.ficate to R2? In that case is either A1 or A2 or are boEh of tshem aggrieved parEies under S.15 of Act 9 of L9B2? In view of the provisions of S.9 (1) (d) it is possible to argue that the Minister has powers to cancel a repossession cert.if icate. Mr. Lule cited a number of authorities to show EhaE the appellants suffered a Iegal grievance. I shaI1 briefly refer Eo some of the cases cited to us and. which were decided by Ehis CourL in reference to who is an aggrieved person within the meaning of S.83 of the eP. Act. and order 42 RuIe 1of the Civil Procedure Rules- Of the cases ciEed llohaned Alltbbai (supra) and 4L a Ladak.A.Moharred Hussein ease (supra) both expropriated propelties. In either case, filed. and a consent. judgment was given. In the case of Mohasred ALlLbhai, originally he wab noE a parEy to the suiE. He however applied to the High Court under S.83 of CP.-Act and Order 42 Rule 1 (1) (hJ of CPR praying for the CourE to revi-ew a consent judgment Eo which he was not a Party. The High Court dismissed his application. He appealed to this Court. IU transpired that the appellanE's, (Mohamed Allibhai's) interesE in the suit property arose out of a grant Eo him on 28/6/L994 of letters of administration to the estate of a former owner. Repossession cert,if icatre of the suit. property had been issued on 8/lL/L994 yet the consent judgment had been given on 24/2/L994, about 4 monEhs before Mohamed obtained leE.t.ers of administration Eo enable him have a say in the affairs of the deceased and about 7 months before the certificate of repossession was issued to enable Mohamed Allibhai have any interest in the suit property. This courE held Ehats in those circumstance Mohamed could not have been an aggrieved party under 0.42 Rule L since the consent judgment, was not passed against him. So he could not have t,he judgmenE reviewed. He was a stranger Eo iE. The decision is therefore not. helpful . arose out of a su'iE was On Lhe oEher hand, in Husgein CaEe, there was a consent judgment in the suiE beEween Hussein and the ALE,orney 42 General . The suit involved expropriated property which had been purchased aE a, publi-c auction by the respondenls on 2/5/7980 and thdr respondents were in physibal occupaLion of the suiE property when Hussein filed . the suiE in 1-991-. Hussein did not join the respondents in the suit. on L6/L2/9L a Minister of State aut.horised Hussein to repossess the prop.erty. .; On 29/l/1992 parties caused a consent judgment to be entered. But on LL/2/1,992, the Minister of sEate for Finance wroEe Eo Hussein another letter revoking Ehe repossession after which the respondenEs who had not been parties to the suit filed in the High CourE an application under S.83 of CPA and Order 9 Rule 9 of Cp Rules asking for the consent judgment to be set aside and for Ehe respondents t,o be joined in the suit as defendants. The High CourE allowed the application although Hussein opposed the applicat.ion stating that the respondents Kakiizas had no i.nterest in the propert,y because Act 9 of 1982 had nullified tsheir purchase. Hussein appealed Eo this Court. Odoki, ,JSC, as he then was, wroEe the lead judgment, wit.h which oEher members of the courE agreed. He referred to both S.83 and O.42 rule l- and held E.hat " a person considering himself aggrieved means a person who has suf f ered a 1ega1 grievance. He doubt,ed whet.her a 3.d party to a suit, can cause a review of a judgment under S.83 or under 0.42 rule 1. He expressed the opinion Ehat in a suitable case a third party may apply for review under inherent. powers of the 43 courE. However he held that under Order 9 RuIe g, the respondents .$ad locus standi t.o apply for ,set.ting aside the consent'\judgment. and for them to be )oined in the suit ,, so . Ehat isgues relaEing to the &'erJts ot the claims of the parties could be deEerrrined ln a fu-LJ,er hearing-t' The hording in that case is,therefore that strictly speaking Kakiisas were not aggarieved parties withj-n Ehe meaning of S.g3 or Order 42 Rule 1. Halsbury's lJaws of England 3'd Ed, Vol .25, page 251 states that a person claiming to be aggrieved must be a person whose lega1 rights are directly affected by the courtrs decision. In the present case, as t.he expression rf aggrieved person'r is not, defined anywhere in Act g/1gg}, I think that the expression must be construed by reference to the contexE of E.he Act itserf and arr the circumstances of Ehe present case. Here Lhe plaint shows that Al sold and transferred suiE, tand tong before the second repossession cert.ificate lvas issued to R2. rn company cause case A1 had been a parbt where transfer t.o him was said t.o be improper. J It is clear from the record in this appeal., EhaE Ehe appellants did not seek to be joined in the proceedings giving rise Eo C.A.3G /96 nor are Ehey doing so in t.hese proceedings. The thrust. of their attack is to have c.A-36/96 declared nulr-. The two cases r have discussed do not help the case of the appellants in t.he approach adopted. 44 I turn Eo the Effect of Maksrere Properties Ltd va At,toraey General .;Civtt Appeal 35 of, L996. As has been pbinted out earlier in this'judgment, Sadrudin, one of'the three brothers and a shareholder in R2 applied for ai-rd had suit land returned to R2.' He manipulaEed the shareholding in R2. As a result he was able to sell the suiE land to AI in 1981. AI became a registered proprietor on 2/B/L982. In L992, R3 instiEuted j-n the High court company cause No.2 of L992 against A1 (A.M.A. PLrLna Vs Maneukh1al. RamJt Karla). The High Court held that tshe change in shareholding was fraudulently done and so iL ordered the Registrar of Companies Eo rectify Ehe company regist.er so as Eo reflect Ehe position in shareholding as it was in ]-972. After that High Court order, R2 applied to MOFEPD for repossession of the suiE properLy. On LO/4/L996 the Minister rejected the application because trGovernoent had, through the Depar?ed Asians Proper|y Custodlan Board, aTready returned Ehe property to you ln 7987.r on 3/5/L996, R2 challenged t.he Minister's decision in t.he High Court by insEiEuting Misc. Appeal No.443 of 1996 against Ehe Attorney General . In t.hat case, R2 prayed that iE be granted cerEificate of repossession. To the misc. application was annexed an affidavit sworn on Lo/5/1996 by R3 explalning whaE Sadrudin did in order tro transfer the suit. l-and Eo A1 in l-981- and how the latter became registered owner in 1982, and how in company cause 2/gZ the High CourE had declared Ehe transfers to be fraudulent. According to the judgment in CA 35/96 Ehose 45 cont,ents of the affidavit were apparentry not charlenged by an count,er-af f idavit. The Att'orney General as aetendiht to the matter filed only a ge'neral defence. According to the same judgment of E.he. Court. of Appeal in C.A.36/96, during the hearing many fact.s deponed to by R3 in his said affidavit and some claims in pteadings were admitted. Admitted fact 3 st.ated that,: - trrvo cert!.ficate authorising repossession as provid,ed for in the Expropriated Properties Act,r9g2 has ever been lssued to Makerere Properties Ltd. o Again in admitE.ed fact 4, it was agreed that: The verificaEion connittee in the Ministry of Einance on 9/7/97 iotimated that a cer:itJcate authorisLng repossessioa by R2 was beLng prepared for issue Co R2. As pointed out earrier t,he same Verification commit.tee had aE that ti-me "purporEed" Lo cancel certificate No'0607. The cancelration was adverEised 1n the Gazattee in November, 1991. on L0/4/ 1995 the Minister rejected the application by R2 for repossession of Ehe suit land. Inspite of those admissions, Byamugisha.J., heard and dismissed Misc. Appeal 443/96. Thereafter R2 appealed. to the Court of Appeal by lodging Civil Appeal No.36 of j_996. On 1.ts .Tune, 1998 Ehe Court of Appeal allowed the appeal , seL, aside the decision and ord.ers of Byamugisha , J. , and entered judgment for R2 and directed t.he Minist.er E.o dea] with the matter under the provisions of Act. 9 of 19g2. In the appeal t.he l_ead judgment, with which the other 46 members of the Court concurred, was written by Twinomujuni{ ,IA. His main findings were that: (a) The sdit property which belonged to hZ in Lg72 had never.been returned to R2 buL was instead wrongfully returnbd Eo Sadrudin, one of the Directors of the appellant. (b) The feturn of t,he properEy to Sa4rudin was wrong because Sadrudin had no authorit,y to claim the properEy on behalf of the company. (c) The High Court in Company Cause No.2 of L992 found that Sadrudin had fraudulenE.ly repossessed the suit properUy and Eransferred it, E,o at. (d) That Eransfer of properEy Eo A1 was affecEed by fraud so passed no valid Eitle to A1 . (e) Alternatively on the basis of t.he principles seE out. in Gokaldas L,aximides TanDa Va Sr. Roaemary MuyLnza and Departed AeLan Property Custodian Board (S.Ct. Civil Appeal L2/92), the purported return of the suit property, to Sadrudin in l-981 and the subsequent registration of the property in the names of AL were both nullified by AcE 9 of 1"982 as they were bot.h effected between 1973 and 2l-'t February 1983. (f) By the Eime Ehe judgment was delivered in Civil Appea1 No.36 of ]-996, the suit property was stiII vested in the Government. There was no appeal againsE that, judgment. Earlier in this judgment I said thaE t.he Court of Appeal was wrong to say Ehat the suit land was returned tro 47 Sadrudin. &,tect ttre But that does not Mr. LuIe has argued that. the decision j-n that appeal did nbt affect the status of the sui't land in so far as the appellants are c.oncerned becaus,e they were not parties to t\ -the titigation. illl Nangwala for 82 and R3 argues that the decision was about t,he stat.us of the suit property. According to Halsburyrs Law6 of England, VoI . L5, 3"d Edition, page L78, t,he meaning of a judgment in rem is defined in paragraph 351 as the judgment of the Court, of competenE jurisdictl.on deBeraining the status of-*a Ehing, or the disposition of a thing ae dlsEinct from the particular interest in it of a party Eo the Ttttgat,ion. Furt,her in paragraph 366, Lhe most important distinction between judgments in rem and judgments inter part.es is given as ilJudgmenLs inLer parEes are onTy bindt-ng as between t&e parties t.bereto and Ehose who are privy to thee. The judgaent ia ren of a couiL of competent jurisdteEion ls as regards- property sltuaEe wiEhl-n the JurisdicEion of the courC pronouacing Ehe Judgmen|, coaclueive against a7l Ehe world 7n whatewer lt settJes as to the stacus of the properEy, or aa Co the rl,ght or title to propertyr Ete Co whaEever dLeposition it makee ot the property iteeTf.n These two principles are not contested in this appeal . I think that on the facts already outlined the status of the suit land was determined by the CourE of Appeal in It was ret,urned. Eo R2. conclusions I have reaehed. 6i4d""l AppeaL No. 36 of 1996. 48 It fherefore follows that. both appellants are bound by it even,if they are strangers to the decision. I am not persrladed by Mr. Lules arguments thab because the present appe.Uants were not parties in C.,A. 36 of 199G Ehe deci3ion is a nullit,y and does not dffect them in so far as Ehe sEatus of the properE,y is. concerned. The best whi-ch the appellants could have done if they had sufficient reasons was to apply during the trial Eo be joined as parties. They did not. FurEher, A1 was a party in High CourE Company Cause No.2 of J-992 wherein Ehe High Court found that Sadrudin acEed fraudulently in selling the suiE property to him (A1). In my view, this affects not only A1 ,s title but also the title of whoever purchased the propert.y subseguently. That means that, A2 did not acguire a valid tit1e. There are other matt.ers which are instructive in this dispute. A2 instituted in the High Court, Civil Suit No.z59 of L998 against. R2 apparent.Iy after the Court ot Appeal had disposed of Civil Appeal No.36 of 199G. AE the time the appeal was disposed of , A2 had justs acquj_red t,he suits 1and. When the case came up for hearing on 3L/S/gg, counsel for R2 objected to the competence of the suit on E.he grounds that the property is vested i_n Government. Lugayizi,,f., upheld the object.ion and held that ClviI Appeal No.35/96 estabtished the status of the property to the effecE that the property was vested in GovernmenE and so A2 had no cause of action. The learned judge also 49 According to the cerEificat.e of Eit.le t.o the suit 1and, A1 became regist,ered proprieLor on 2/B/]-982. On l0/7 /L996,R2rs caveat was removed. Nullified repossession certificate No.0607, in A1 's names, was not.ed on Ehe I t,it]e. This is perplexing because the pleadings for R2 show that that repossession certificate was cancelled in 1991 and thaE fact was advert,ised in Uganda GazetE.ee on 7/L1/9L. Further, one wonders how A1 ,s name was entered on the title on 2/B/82 before repossession cert.ificatre was given. But that is not all . The certificate of t.itle shows and this is reflected in the plaint that immediately Repossession Certificate No.060? was noted on the title, A1 E.ransferred the land to NadLms Ltd, who was enLered on the title as t,he new propriet.or. On 5/5/L997 proprietorship was changed from Nadime Uo Meera Investment L,,td. Hardly two months lat,er, orL 25/6/1997, A2 appears on the t,itle as t,he new proprietor. A11 these found that because of Civil Appeal No.35/95, the suit was frivolous and vexatious and..so he dismissed the suiE. ta The point here is that. all-' along, t.he proprietary rights. ' of A1 in R2 was being chalienged yet he purported to sell the property to a third paruy. I am aware Ehat the High Court decided the case.- Ehe subject of Ehis appeal- without hearing evidence. So neither t.his Court nor the Court below had evidence to assess the credibiliEy of t,he wiEnesses or parties. BuE certain mat.ters are clear from Ehe pleadings. 50 chaiges in proprietorship took place during the period ,,when varj.ous court battles, .some of which have been "mentioned in this judgment, ,Jl. raging i.n courts. More lighE courd have been shed on all these matters in a fulr tria1 . But a fuII trial woutd not change the status of the suit land whi-ch is that because S. 2 of Act. No. 9 of 1982 nullified the transactions of 1981 and l_982, by 1998 at the ti-me repossession was granted to A2, the suit ]and remained vested in Government by Law, That, was E.he status. Section 2 in so far as relevant states: n2 (7) Aloy properEy or bueiaess wbich was: (a) Veshed ln the Govern,IlenE aad transferred to tlre Departed Asians, property Custodiaa Board uader the Assets of Departed Aslans Act. ShaIJ,, from the commerzcement of this Act, renal,n vested in the GoverrTment and be managed by t.he Ministry responaible for tinance. a 51 u(2) For the avojdance of d.oubt, and not with standing tJre provisions ol any wri|ten law governing Ehe conferrlng of tjt-Ie Eo land, properEy or busjaess and the passing or transf er of the tit,le, j t is decl,ared tha t.. - (a) any purchases, transfers and grants of or ahy dealings of whaEever kjnd 'i,n such ' property or busjness a.re nu77i'f ied.,, ' In view of the foregoing discussions, I think thatr grounds 5 and 6 ought to fail . In the resuLt, I:think that. this appeal has no meriE. I would dismiss it and would award. twp thirds of the c-osts t,o the respondenE." L_*t A^^A i,^ a{,tt*\fu, Derivered ar Menso tni".......[klk..aay or..AO. /,k&* .2004. Tsekooko ilustice of the Supreme Court lt- lLr*z* b ,1a th <1 9-k ^er 91 pA rr *) ) ( MyT -li--A k ,-Ps ' 5 L\- A TL (-.1* )e '{_, ,.,<.^_ I -0 \/-'e'"/.1\ c[^ v&/rLc) VWcc^* C> )u ) 4e4,8 /l tu YC ctr ,J --- ( lbl/4"*,+ s2 & tr* In-- .L t (-,4.- r<,--'U ) a APPETLANTS un appeal from the iudgment of the court of Appeat at Kampata fitukasa- Klkonyogo, DCJ, Engwau ancl Klt rmba, JJ. DATED 1.8.2oo2 ilr ctvll AppEAL ItO. 69 0F 2000t JUDGEMENT OF ODER, JJSC I have had the benefit of reading in draft the judgment of ryj(o o, JSC. I agree with him that the appeal should be disin issed with rcosts to the respondents in this court and the Court below. I have nothing useful to add. ( t, a.,U 1 2 3 ATTORNEY GENERAL ] MAKERERE PROPERTIES LTD.> AMIN MoHAMED PTRANT ) -\^^0 A.H.O. Oder, JUSTICE OF THE SUPREME COURT THE REPUBUC OF UGANDA IN THE SUPREME COURT OF UCANDA AT MENCO (CORAM: ODOKI, CJ, ODER, TSEKOOKO, KAROKORA AND KANYEIHAMBA, JJ.S.C.) CIVIL APFEAI NO. 20 OF 2OO2 BETWEEN 1. NANSUKHATAT RAMJIKAR|AI 2. CRANE FTNANCE CO. rTD. J AND RESPONDENTS L. Dated at Mengo this day orlP$$H2esa (l ;iYW- ) I THE REPUBLIC OF AGANDA IN,THE SUPREME COURT OF UGANDA AT MENGO (CORAM: ODOKI, CJ, ODER, TSEKOOITO, IUROKORA, KANYEIHAMBA,' JJ.SC.) CIVIL APPEAL NO. 20 OF 2OO2 BETWEEN I. bl,tNSUKItLrlL RALIJI KARIA j 2. CRANE FINANCE CO. LTD i AND APPELLlNTS RESPONDENTS (Appeal from the judgment of he Courl of Appeal at Kampola (Mukasa- Kikonyogo, DCJ, Engwau and Kitumba, JJ.A) daled I't Attgust 2002, in Civil Appeal No. 69 oJ 2000). JUDGMENT OF KAROKORA, JSC: I have had the benefit of reading in draft the judgment prepared by my learned brother, Tsekooko, JSC, and I entirely agree with his conclusions that the appeal ought to be dismissed with two thirds of the costs to respondents in this Court and in the courts below. I have nothing useful to add. Delivered dl Mengo frirr. I 6 +t- tloy of. NJ- A, N. KAROKORA JUSTICE OF THE SUPRETTE COURT I. ATTORNEYGENERAL } 2. MAKERERE PROPERTIES LTD.I 3. AMIN MOHAMED PIRANI: } 2004. -_7 THE REPUBLIC OF UGANDA IN,THE SUPREME COURT OF UGANDA AT MENGO BETWEEN 1. NANSUKHALAL RAMJ| KARIA) 2. CRANE FTNANCE CO. LTD ) AND 1. ATTORNEY GENERAL ) 2. MAKERERE PROPERTIES LTD) :::::::: 3. AMIN MOHAMED PIR,ANI } APPELLANT :: RESPONDENTS (An appeal lrom the judgment of the Coutt of Appeat at Kampala (Mukasa-Kikonyogo, DCJ, Engwau, and Kitumba JJA,I dated l't Augusa, 2OOZ, in Civit Appeal No 69 of 2000) I have had the benefit of reading in draft the judgment of my learned brother, Tsekooko JSC, and I agree that for the reasons he has given, the appeal should be dismissed with costs to the respondents, in this Court and Courts below. Men 2004. Dat go this . . .. . .. . ... day of B doki As the other members of the Court atso agree with the jfrS"ryt_$HJI"E ol proposed by Tsekooko JSC, this appeal is dismissed-witn,coiii-io ine rr respondents in this Court and the Courts below. t CHIEF JUSTICE GIVIL APPEAL NO.zO OF 2OO2 (GORAM: ODOKI CJ, ODER, TSEKOOKO, KAROKORA, AND KANYEIHAMBA, J.J. S.C.) JUDGMENT OF ODOKI CJ .. IN THE SUPREME COURT OF UGANDA ,. AT MENGO (coRAM: oDoKt, c.r., oDER, *5f3.:{," KARoKoRA, KANYETHAMBA, CIVIL APPEAL NO. 20 OF 2OO2 BETWEEN 1. M.R. KARrA I 2. CRANE FTNANCE LTD.I 1, ATTORNEY GENERAL 2. MAKERERE PROPERTIES LTD 3. AMIN MOHAMED PIRANI APPELLANTS I .t I RESPONDENTS [Appeal from the judgment of the Court of Appeal at Kampala (Mukasa-Kkonyogo, D.C.J., Engwau and Rtumba, JJ.A.) dated 1il August, 2002 in Civil Appeal No. 69 of 20001. I have had the benefit of reading in draft the judgment of my learned brother, Tsekooko, J.S.C. and I agree with him that this appeal ought to be dismissed Nfl?J flrvittr costs. \ G.W. IHAMBA THE REPUBLIC OF UGANOA VERSUS JUDGMENT OF KANYEIHAMBA. J.S.C. JUSTICE OF THE SUPREME COURT