[1999] UGHC 42

TIIE REPUBLIC OF UGANpA ^7fX IN THE HIGH COURT OF UGANDA "AT KAMPALA CIVIL SUIT NO. 759 OF 199.8

# CRANE FINANCE COMPANY LIMITED

VERSUS

PLAINTIFF

*111)*

# MAKERERE PROPERTIES LIMITED DEFENDANT BEFORE: THEIhON. MR. JUSTICE E. S. LUGAYIZI

#### RULING:

proprietor.

*.'Jff*.'

This ruling is about a preliminary point of law which was raised by tire defendant's advocate Mr. Sekandi jus: as this court was about to hear this suit. Mr. Sekandi was of the view that objection, ¹ think it is necessary to narrate the background which gave rise to this suit. this suit docs not disclose a cause of action. However, before I go into the merits of that

Briefly, that background is as follows. The suit premises which is a commercial building lying in the hear of Kampala city originally belonged to Lite defendant which acquired it in the 1960s. In tl e early 1970s when the then President of Uganda (Idi Amin) expelled the Asians from Uganda, all the defendant's directors left the country. They abandoned the suit tvas later taken over by the Departed Asians Properties Custodian Board . Karia in turn sold it to Nadim's Ltd. Nadim's Ltd. sold it to Meera premises which (DAPCB). However, in the early 1980s, one of the defendant'^s directors returned to Uganda jO and singularly applied for the repossession of the suit premises. The DAPCB returned the. suit premises to me defendant. Later, 'die said director made arrangements and so'd the suit ■' premises to one Karia Investments. Meera Investments then sold it to the plaintiff which is presently its registered

nee who refused to return the suit premises to the defendant. of Appeal under Civil Appeal No. 36 of 1996 reversed the High Court decision in H. C. C. S. It would appear :hat on learning the above, the rest of the defendant's directors who did not participate in the repossession of the suit premises in the early 1980s subsequently began their own struggle to repossess the suit premises. In the mid 1990s those directors therefore *'■* aPPlicd to tlie Minister of Fina: \ ^aPPeai'-d the High Court against that decision. The High Court under H. C. C. S. No. 443 of'1996 upheld the Minister's decision. The defendant once again appealed. **The Court (O** No. 443 of 1996 and permitted the defendant to apply for repossession of the suit premises. It is that decisioii of the Court of Appeal which threatened the plaintiff and caused it to file .. this suit against tlie defendant.

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Court of Appeal ' decision was legally incompetent. Mr. Sekandi stressed that the High Court which was *^t* bound by **all** tlie decisions of the superior court cannot lawfully set aside any decision of the He finally urged court to reject the plaintiffs suit on the ground th»l ii does not disclose a cause of action and to strike it out under Order 7 rule 11 (a) and (e) of *Q-\$>* 1996, the status \ clearly showed t rat tlie suit premises is vested in Government. He therefore argued that it was obvious that this suit whose central purpose was to request court to set aside the above **: "**............... ; .. hearing on 31st May, 1999. However, on that day, the defendant's advocate raised the' above objection and hoped that it would wholly dispose of this suit. In a nutshell, Mr. Sekandi submitted that from the decision of the Court of Appeal in Civil Appeal No. 36 of In its W. S. D. the defendant denied the plaintiff'^s claim. Eventually, this suit was fixed for fS of the suit premises was not in doubt. According to him that decision *⁹*

the CPR-

**. in** many important issues of mixed law and facts which would only be adequately dealt with under a full trial. Mi. G. S. Lulc (S. C) was of a contrary view. He submitted that the plaintiff's suit raised argued that all these were matters which needed to be investigated in a full trial if a just ^< decision was to ' e finally arrived at in this suit. He therefore requested court to over-rule the defendant's objection and to proceed with the full hearing of tins suit. He cited the existence or non existence of the Court of Appeal decision in Civil Appeal Mo. 36 of 1996 and whether that decision binds this court; whether the plaintiff has a valid title to the suit premises; whether the Minister of Finance had earlier on dealt with suit premises under the Expropriated Properties Act (Act 9 of 1982); etc, and

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say, \*;

Before I discuss the above objection, I feel I must point out a few things. First of all this £ *0* suit is not an appeal, under section 14 of the E,xpropriated Properties Act, against the Minister's decision to grant the defendant repossession of the suit premises; and it does choice but sustain it. Thirdly, in dealing with this kind of objection, court is enjoined to Shariff & Co. v consider only the plaint; and that is exactly what I will do, because that is what the law says. \* The position of the law could not have been put more clearly than it was in the case of Jeraj Chotai Fancv Stores 11960] E. A. 374 at Page 375. where court had this to > pretend to be so ' Secondly, we are yet to find out but as of now the above objection is regarded as a matter which may or may not be touching the merits of this suit. If court later finds that the saitl objection in fact does not affect the fundamental aspects of this suit, court will ofcourse over-rule it. However, should court later find otherwise, court will have no,

"The question whether the plaint discloses a cause of action must be

attached so as to form part of it, and upon die assumption that any express or implied allegations of fact in it are true". determined upon a perusal of the plaint alone, together widi anything

follows Be that as it may], there are three recognized elements which in law support a cause of action; and they are as

That die Plaintiff enjoyed a right.

2. ' . That the said right was violated.

3. That the defendant is liable.

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1.

If any of the above elements was missing, the plaint would be a nullity. (See Auto Garage . v. Matokov (Nol. 3) per Mustafa J. A. Page 514 at Page 523. Now, the important question [ £? . to answer is wither the plaint in this suit satisfies the above requirements? In a bid to - v- ; - -y' ' | ' answer the above question, I will discuss the said elements in turn in relation to the plaint.-

Concerning the first element, indeed the core of the plaintiff's claim in this suit which lies and 4 (a) of the plaint and Annexlure CFC 15 to die plaint is that the In other words, die plaintiff In in paragraphs 3 plaintiff is the registered proprietor of the suit premises. contends in the plaint that it enjoys a right in respect of the suit premises. However, in the same plaint. und:r paragraph 4 (In and (i) die plaintiff refers to die Court ofAppeal decision in Civil Appeal No. 36 of 1996 which it bitterly complains about in some other areas. that decision which was delivered on 1st June, 1998, Twinomujuni (JCA) had this to say about the suit premises at page 15 of his judgment.

"In 1996, when the appellant applied for repossession of the suit property, the property .... was vested in Government. In fact the suit property is still tested in Government".

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status of the suit premises. In other words, tlie suit premises is not private property, but **^<** Government property. In addition to die above, I am in full agreement with the submission of Mr. Sekandi tliat tlie above decision is a judgment in rem, diat is to say, it binds the whole world. (See Halsboury's Laws of England (Third Edition) Vol. 15 page 191 paragraph 366). In the premise, that decision effectively nullifies whatever right or interest ... the plaintiff had in the suit premises. In short that means, that as of now, the plaintiff is not be dealt with ly tlie Minister concerned under Act 9/82". From tlie foregoing, it is clear that the decision in Court of Appeal Civil Appeal No. 36 of 1996 determined the present Following tire above, the learned Judge finally directed that the matter of the suit premises /' lawfully enjoying any right or interest in the suit premises.

After coming to the above conclusion in respect of die first element, it becomes unnecessary **/** to discuss the second and third elements. That leads to the inevitable conclusion that the plaintiff's suit does not disclose a cause of action; and is therefore a nullity.

Needless It to say, The above aside1, I am also of the opinion that this suit is frivolous and vexatious. That is be seen from the plaint, particularly paragraphs 5. 5 (b), and 13 (f), its Ofcourse, that is something which this court has no jurisdiction to do. the High Court is bound by every decision of the Court of Appeal. so because as can main purpose is to move this court to set aside the Court of Appeal decision in Civil Appeal No. 36 of 1996

would therefore be unthinkable for this court to pretend, even for one moment, that it can set aside or in anyway interfere with any decision of the Court of Appeal.

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All in all, Mr. Sekandi's preliminary objection must succeed. As a result this suit is hereby rejected and stiuck out under Order 7 rule 11 (a) and (f) of the CPR.

/ Plaintiff.is also ordered to pay the costs of this suit to the defendant.

on 5th June, IS 99, in respect of the suit premises is hereby discharged. I further order that the temporary injunction which was granted to die plaintiff by this court

**J**

LUGAYIZIy ,. ■// *A* -JUDGE. -

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15/6/99

JUDGE

. A'

15/6/99

Read before: A 2.35 p.m.:

Mr. Musisi for the Plaintiff

Mr. Nangwala ?or Defendant

' "■ Mr.' Scnabulya **Court** Clerk

-/E. S. LUGAY1J5I ⁰

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 759 OF 1998

PLAINTIFF DEFENDANT CRANE FINANCE COMPANY LIMITED ::::: VERSUS MAKERERE PROPERTIES LIMITED

### ORDER

IHIS OBJECTION coming on this day for final disposal before JUSTICE E. S. LUGAY1ZI in the presence *of* Mr. MUSISI holding brief for MR. GODFREY LULE and JAMES NANGWALA for the defendant but in the absence ofMR. EDWARD K. SEKANDI leading counsel for the defendant.

#### IT IS HEREBY ORDERED

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1. THAT the decision in Court of Appeal Civil Appeal No. 36 of 1996 ■v\*''; determined the present status ofthe property as not being private properly but Government property.

THAT the said decision is a judgment in rem and nullified whatever right or interest the plaintiff had in the suit premises.

3. THAT the suit is frivolous and vexatious as this court has no jurisdiction to set aside the Court of Appeal decision in Civil Appeal No. 36 of 1996.

THAT the preliminary objection succeeds and the suit is rejected and '• struck out under Order 7 Rule ¹¹ (a) and (t) ofC. P. R.

5. THAT the plaintiffis ordered to pay the costs ofthe suit.

6. THAT the temporary injunction which was granted to the plaintiff by this • court- on 5lh June 1999 in respect of the suit premises is hereby discharged.

GIVEN under my hand and the seal ,of.this court this 15th day ofJune 1996. . . *//***67/** *,/\* ,. . .

judge^O (/ b

EXTRACTED & FILED BY2 M/s SEKANDI *& CO.* advocates, JI KAMPALA ROAD, P. O. Box 6716 KAMEALA