[2001] UGCA 35

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA A,T KAMPALA

## CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA.

## CIVIL APPLICATION NO. 14 OF 2OO1

(Arising out of Civil Applications No. 12 & 13 of 2001)

# IO EAST AFRICA GENERAL INSURANCE

#### VERSUS

- 1 MA,NUBHAI MADVHANI - 2 HIMATLAL GANDESHA - 3 vrvEK ARAUJO................. ............... RESPONDENTS

#### RULING OF A. E. N. MPAGI-BAHIGEINE, JA.

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This is a ruling on the preliminary points in objection to Application No. 14 of 2001 seeking this Court's order to rescind the interim order for stay of execution made by this Court (Single Justice) on 15/3/2001 in Civil Application No. 13 of 2001. This application, (No. 14 of 2001), was brought by way of Notice of lvlotion under Rules 5(1X2); 41(1) and (2); a9(2);52(1) & (2)(b); 53(1); and 56 of the Rules of this Court.

It is supported by an affidavit affirmed by Himatlal Ghusalal Gandesha, Esq. lt is dated 16.3.2001.

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At the commencement of the hearing, six preliminary points in objection to the competence of the application were raised by Mr. Edmund Wakida as follows:

- (1) Defective Certificate of urgency. - (2) Omission to attach proceedings to Certificate. - (3) The application purports to seek an order in revision. - (4) The disputed interim order not covered by Rule 56. - (5) Defectivesupporting affidavit. - (6) Jurisdiction of this court to grant the disputed order including alternative remedy.

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Regarding the first objection, Mr. Wakida argued that the certificate of urgency was defective. lf failed to comply with Rule 49(2) under which the application was brought (amongst others). This sub-rule requires that the applicant's advocate in case of urgency signs the certificate of urgency. Mr. Wakida pointed out that the Certificate of urgency filed represents that the applicant Company is EAGEN whose consel is M/s. Sebalu & Lule Advocates and yet the applicants are the Attorney General, Manubhai Madhvani; Himathal Gandesha and Vevek Araujo whose counsel are the same Mis. Sebalu & Lule Advocates. He contended that this is an anomalous situation as the application is brought by the very Company against which the orders are sought. lt was therefore not signed by the right counsel nor was it dated. He asserted that in actual fact the applicant was not EAGEN whose counsel is M/s. Katende, Ssempebwa & Company Advocates. ln his view there was no certificate of urgency and this vitiated the proceedings before court.

ln reply Mr. Lule S. C. contended that at the time of filing the certificate of urgency he was instructed by persons who were in possession of the certificate of Repossession issued on 711212000. These were the people in control of or with authority to govern EAGEN at the time. He submitted that under sections 4, 5 and 6 of the Expropriated Properties Act No. 9/1982, the people in possession of the Certificate of Repossession were entitled to sue in respect of the properties

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returned to thern. The certificate of Repossession was issued to the Asian ^Omajority shareholders and they were entitled to exercise all the rights and authority vested in them by Company Law. He pointed out that the Repossession Certificate was concerned with the dispossessed Asian majority shareholders of EAGEN. This was under sections 4 and 5 of the Expropriated Properties Act No. 911982. Mr. Lule maintained that the certificate of urgency was therefore signed by the duly authorised counsel.

Rule 49(2) provides:

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"(2) ln case of urgency, an application, other than an application under rule 110, may be made ex-parte, but in such case, if the applicant ls represente d by an advocate, the advocate shall sign a certificate of urgency, which shall be filed with the proceedings."

Paragraph B of the affidavit in support of the application indicates that on 711212000 the Minister of Finance, Planning and Economic Development issued a certificate of Repossession of all the expropriated shares and assets to the dispossessed majority Asian shareholders of EAGEN as at 9.8.72.

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Paragraph 11 states

"That on 8/12/2000, at a meeting of EAGEN after repossession, Mr, Manubhai Madhvani was appointed chairman. I was appointed Managing Director and Vivek Araujo was appointed General manager/Company Secretary".

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Under the Act 9/82 the Certificate of Repossession vested the Repossessors with all the rights and authority Company law vests in them including the right to sue in respect of all matters pertaining thereto. The Certificate further clearly indicates that it is in respect of the majority Asian Company, EAGEN. Under

Section 6of the Expropriated Properties Act 9/82, the issuance of the certificate of Repossession enjoined the Chief Registrar of Titles and the Registrar of Companies to restore the Company and certificates of title respectively to their former position. This means that the Asian Company EAGEN was restored to its former position as at 9.8.72 when it was dispossessed. This is the genesis of the confusion and hence the proceedings. The Asian Company (EAGEN) as per pleadings through its controlling authority (paragraph 11 of the affidavit) thus instructed M/s. Sebalu & Lule Advocataes. The certificate of urgency was therefore, in my view, duly signed by authorized counsel. lt is dated 16.3.2001 . This ground of objection is unsustainable.

The second point taken by Mr. Wakida regarding the certificate of urgency was that no proceedings were attached in accordance with the same rule (49(2D. He argued that the rule requires proceedings to be attached to the Certificate of Urgency and that it is a mandatory requirement. He submitted that an essential step had not been taken, which vitiates the proceedings. He prayed that the application be struck out.

Mr. Lule S. C. argued that the requirement to attach proceedings is for information of the Court, especially when the proceedings emanate from a lower court. The proceedings in question (Application No. 13 of 2001 ), were before the same court and were argued by the same counsel a matter of days previously and that at the time of filing the application, the file was not available in the Registry. Mr. Lule S. C. submitted that the omission to attach the proceedings in this case was a technicality which would not prejudice the respondents. The proceedings had been argued before the court by the same counsel only a few days earlier and were relatively brief. I do agree therefore that the omission to attach them would not prejudice the respondent. lt is a technicality which can be ignored in accordance with Article 126(e) of the Constitution. The Court was informed by the Clerk that the record was under typing at the time of filing the application. The second ground of objection is accordingly overruled. -'10

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o Regarding the third objection, Mr. Wakida submitted that the application seeks an order in Revision which the Rules of this Court are silent about. He argued that the rules relating to revlsion in the High Court are prescribed by section 84 of the Civil Procedure Act and these relate to revisions of a lower court's orders. He pointed out that though section 12 o'( lhe Judicature Act vests this court with all the powers of the original court which would by implication include the power of revision, this court cannot revise its own decisions as this power relates to lower court's decisions.

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Mr. Lule S. C. acknowledged the reference to "revision" but conceded it was a typographical mistake. The application seeks an order in rescission and not in revision.

The affidavit in support of the application is entitled

# "Affidavit by Himatlal Gandesha referred to in the Application for Rescission of lnterim Order of Stay of Execution dated 15/3/2001."

The application is brought under Rule 56 amongst others for rescission. The rule does not refer to revision. 20

This would confirm Mr. Lule's claim that the reference to revision must have meant rescission in which case this typographical error would not vitiate the proceedings. Also See Mulla on the Code of Civil Procedure Act v of 1908, Fifteenth Edition - Vol. '1 at page 936 - (w 20) where it is stated:

"A court which had no revisional powers, could not allow the revision to be treated as an appeal, even if the order was appealable and the appeal lay to that Court. But an inadvertent misdescription of ^a proceeding as a revision, while in reality, it was an appeal, is a mistake of

form and not of substance and could be corrected under section 151, C. P. C. and the proceedings could be disposed of as an appeal."

This ground of objection is devoid of any merit and is overruled too.

I Regarding Section 12 of the Judicature Statute importing rules of the High i Court into the Rules of this Court as contended by Mr. Wakida, this is a general . section. lt is echoed by rule 1(2) of the rules of this court whose ambit is more particularly defined by rule 2 which is the interpretation rule, concerning J0 "appettate jurisdiction". From this interpretation it is clear that when this court is disposing of any matter from the High Court including revision of a decision of the lower court amongst others, its role is to ascertain whether the lower court applied the rules applicable by that court properly. ln doing this, however, it is guided by the rules of this court in accordance with Rule 1(2) of the rules of this Court. That disposes of the third ground of objection.

Concerning the fourth ground of objection, Mr. Wakida submitted that Rule 56 which gives power to rescind her/his orders on application is restricted to instances where the order made by the judge was for extension of time or was permitting the doing of some act without specifying the date it should be done and the then applicant has not taken any positive steps to do that act.

He pointed out that rule 56(2) relates to orders made by the full bench which is not the case here. He asserted that the disputed order was merely interim, and for stay of an illegally extracted warrant of execution which was conducted on a Saturday. He stated that this application is not covered in the exceptions under Rule 56. The illegality of execution on Saturday once brought to the attention of the Court was by itself sufficient to override all other matters and warranted staying.

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lt/r. Lule pointed out that a court without .jurisdiction to make a valid order has jurisdiction to entertain an application to inquire into the validity of the order

() made and if need be set it aside or rescind it. The disputed interim order was made on 151312001 and was to remain in force "pending the hearing and determination" of Civil Application No. 12 of 2001, for an order for stay of execution. lt did not specify or fix the hearing date for Application No. 12. lt thus falls under rule 56(1)(b) and (2) and is properly before this Court. This court is empowered to inquire into whether it had jurisdiction to make the interim order for stay of execution. Also See Chitaley and Rao - Commentaries on the Code of Civil Procedure - 7th (1963) Edition - Vol. 1 Sections 1 - 101 where it is stated that if it transpires that a court has no jurisdiction over a certain matter, its orders made in respect thereof are void and of no effect and may be set aside or rescinded by the Court in which they were made. The illegality alleged in execution of the warrant of attachment was not substantiated before court nor would it confer jurisdiction where there was none. This ground of objection fails too.

Regarding the fifth objection Mr. Wakida contended that the affidavit accompanying the application was defective. lt was highly irregular for Mr. Gandesha to affirm an affidavit on behalf of the applicants who are indicated on the certificate of urgency to be the Company EAGEN which is both the applicant and the respondent in the same suit. I have dealt with this aspect of the matter above when dealing with the validity of the certificate of urgency. Mr. Wakida, however, argued that the said affidavit omits to state the following:

ln which suit it is filed, (a)

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- It does not state who are the parties of the suit (b) - It does not even show to what court it is filed, and that (c) - Most importantly it offends Rule B of the Oaths Act which requires that every affidavit shall state the place and date at which it is sworn. He submitted that it was incurably defective as it offends Rule 43(1 ) which requires an application to be supported by an affidavit. Mr. Lule was of the view that the objection on this point (d)

was triviality as the document and its contents clearly indicate that it was drawn in Kampala. lt is part of the proceedings emanating from the High Court, before Hon. Okumu-Wengi J. in which the deponent has been featuring, a fact well known to the respondents and their counsel.

A perusal of the affidavit indicates that it narrates and chronicles the sequence of events in this dispute - since its inception. lt is dated 161312001 . lt is signed by the affirmant and commissioned by Mr. Mbogo whose stamp indicates all this to have been done at Kampala.

It is well settled that the court may receive an affidavit for the purpose if being used in any cause or matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat or any other irregularity in the form thereof. An affidavit where title is omitted is receivable - See Phipson on Evidence - Fourteenth Ed. Page 168 paragraph 10 - 5 and Re Husband (1865) LT. 303. The elaborate processes by which minute divergences were formerly to be corrected can hardly be insisted on at the present day. ln the same spirit, the Supreme Court held in Re. Christine Namatovu Tebajjukira, Civil Appeal No. 2 of 19BB [1992 - 93] H. C. B. 85 that the Administration of Justice should normally require that the substance of disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights. This ground objection is also overruled.

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The sixth ground of objection concerns the jurisdiction of a single justice to make an interim order for stay of execution. Mr. Wakida submitted that a single Judge has powers to grant an interim order of stay of execution pursuant to rule 1(3) which provides for inherent powers of the Court and that any person aggrieved by the decision of a single judge should proceed under section 13 of the Judicature Statute, i.e. appeal to a full bench of three Justices of the Court of Appeal. He cited three authorities of the Supreme Court in support of his

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contention - Ebrahim Kassam v Habre lnternational Co. Ltd - S. C. Misc. Application No.21l1999 where Hon. Kikonyogo, JSC (as she then was) sitting as a single justice granted an interim order of stay of execution - Similarly in Uganda Breweries Ltd v Uganda Railways Corporation SCCA No. 2512000; and lsmael Sekabe v Haji Yahaya Zirabamuzaale - SCMA No. 7/200'l , Hon. Karokora, JSC made similar orders. Mr. Wakida therefore submitted that this court was mandated to grant an interim order of stay of execution sitting as a single Justice.

Mr. Lule SC pointed out, however, that the order of stay of execution is an injunctive remedy which is excluded from the jurisdiction of a single judge by rule 52(2) and therefore excluded from the jurisdiction of this court. He prayed that ^I find so and set aside the illegal order. I0

It is imperative to examine the jurisdiction conferred by section 13 of the Judicature Statute 1 996.

Section 13('1 ) provides

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## "A single justice of Appeal may exercise any power vested in the Court of Appeal in any interlocutory cause or matter before the Court of Appeal."

A quick look at the provisions might appear to suggest that where any cause or matter of an interim nature is before the Court of Appeal a single Justice of Appeal is competent to exercise the powers vested in the three Justices of Appeal sitting together. This is exactly what Mr. Wakida is advocating, that is, an interlocutory cause or matter needs to go before three Justices of Appeal by reference only. ln my view if that were the true position, rule 52 in its entirety would be absolutely superfluous.

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Rule 52 refers to applications. Applications are essentially interlocutory. The Court of Appeal has no original jurisdiction save when it is sitting as ^a Constitutional Court; so since all applications before the Court of Appeal are essentially interlocutory and if Section 13 was intended to vest all powers in a single Justice of Appeal in interlocutory causes or matters, why should rule 52 be required and worded the way it is.

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It is therefore necessary to look at the possible alternative interpretation.

To my mind Section 13(1) of the Judicature Statute is merely an enabling provision. lt empowers the rules - making authority to determine the powers of ^a single Justice of Appeal alone and his/her judicial limitation. The use of the word "may" in the subsection is significant. The word is used purposively. lt means that a single Justice of Appeal is free to exercise the powers vested in the bench of three Justices if there is no restriction on a single Justice to do so. With Section 13(1) in mind, the rules - making authority specified what powers may be exercised by a single Justice and what may not be. This is where the exclusion in rule 52 comes in. l0

To understand it more one has to take a look at the definition of the term "Court" in rule 2 which is the lnterpretation rule. "Court" means the Court of Appeal of Uganda as established under Article 129 of the Constitution and includes any division of the Court and a single Judge exercising any power vested in hrm or her sitting alone. This definition read together with Section ¹3(1 ) of the Judicature Statute 1996 appear to say that a single Justice of Appeal can only exercise so much power as is vested in her or him under the law. The only law I am aware of vesting powers in a single Justice is in the Court of Appeal Rules, rule 52. This power permits a single Justice to exercise all the powers of the bench of three if the causes or matter is interlocutory and is not excluded under sub-rule 2. So the powers a single Justice can exercise in an interlocutory matter or cause are those vested in her under rule 52. Rule 52 is in conformity 20 l0

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with Section 13(1) of the Judicature Statute, just as the Civil Procedure Rules are in conformity with the Civil Procedure Act.

Section 43 of the Judicature Statute confers authority on the Rules Committee to make rules for the Court of Appeal amongst others.

The Court of Appeal Rules or Section 43(2)(y) of the Act enables the rules making authority to make the Court of Appeal Rules under Section 43(5). These rules were made with specific authority of Parliament and thus they have the same authority or force with an Act of Parliament. Unless Rule 52 (2Xb) were set aside on some grounds as being ultra vires of the parent Statute or being ^unconstitutional, it has the force of law of an Act of Parliament. As I have said earlier rule 52 is complementary and not contradictory to section 13 of the Judicature Statute. Under both rule 52 and Section 13 the bench of 3 Justices has power to entertain any cause or matter before the Court of Appeal including an application in interlocutory causes capable of being heard by a single judge and the judge has the discretion to refer any matter within her competence to the bench of three Judges.

ln my view it is this second interpretation which makes sense to the two provisions. I therefore reiterate that a single judge sitting alone is not a Court in regard to the maters excluded under rule 52(b) because she/he would not be exercising powers vested in him/her by the rules. 20

The issue is not one of exercising discretion as Mr. Wakida has argued but of jurisdiction. Discretion does not arise/avail where there is no jurisdiction. The inherent powers of the Court referred to or conferred by rule 1(3) is power vested in the Court of Appeal by law. lt has statutory effect but it is in the Courts duly constituted by a bench of three Justices of Appeal. lt is not vested in a single Justice. lf a single Justice were lhe "Court" for all purposes no distinction would have been brought out in the Statute or in the rules. Such distinction does appear in regard to the High Court as in Magistrates' Courts. The reason for

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over by a single Judge exercise drtferent powers from that presided over by a tull bench.

ln the case of National Union of Clerical Commercial & Technical Employees vs NlC, SCCA 17i93. the Supreme Courl found at page 7 that the question was not exercise of jurisdiction but of discretion. ln the instant case it rs not inherent powers but jurisdiction. A judge cannot invoke inherent powers where she has no jurisdiction. As a single judge I had no power or jurisdiction to hear and grant relief on an application in matters of a substantive stay of execution, I had no power to entertain and grant the lnterim Order of stay of execution upon an application No. 13 of 2001 made as ancillary to the substantive application (No. 12) for a stay of execution.

I think I should point out that jurisdiction was the crux of the pending application No. 14 of 2001 but since Mr. Wakida decided to address it as one of the grounds of objection, I had no alternative but allow counsel for the applicant Mr. Lule SC to reply to Mr. Wakida's submissions. Therefore, having found as ^I have, that I had no jurisdiction, I rescind my order made on 15.3.2001. This means that the High Court Order which gave possession to the applicants is reinstated forthwith.

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Needless to say the preliminary objections fail with costs

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A. E. N. ah igeine Justice of Appeal ⁱ ,) 26t03t01

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