[1999] UGCA 42

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 40 OF 1998

CORAM: HON. MR. JUSTICE S. T. MANYINDO, DCJ. HON. MR. JUSTICE C. M. KATO, JA. HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA.

FIREMASTERS LIMITED ::::::::::::::::::::::: APPELLANT

## - VERSUS -

UGANDA RAILWAYS CORPORATION ::::::::::::::::: RESPONDENT

> (Appeal from the Ruling and Order of the High Court at Kampala (D. Akiiki-Kiiza, Ag. J.) dated 28/5/98 in Misc. Appl. No.404 of 1998)

## JUDGMENT OF C. M. KATO, J. A.

$\cdot$ $\omega$

This is an appeal against the ruling of the High Court delivered at Kampala on 28/5/98.

The facts of the case are brief. They are as follows. The appellant obtained judgment in the High Court against the respondent for a sum of Ug.shs.43,277,900/= on $27/2/97$ . The respondent did not pay the decretal sum and the appellant applied to the High court ex-parte for leave to apply for a writ of mandamus. The learned trial judge dismissed the application on the ground that the appellant had not complied with the requirements of section 20(1) of Government Proceedings Act. The appellant appealed against the dismissal.

There are four grounds of appeal, namely:

$\mathbf{1}$

The Learned Trial Judge misdirected himself and erred $1.$ in law when he arrived at a wrong conclusion that the Applicant/Appellant while applying for leave to apply for Mandamus, had to file a certificate in a prescribed form issued by the Registrar as envisaged by S.20(1) of the Government Proceedings Act, Cap.69.

$\mathbf{C} = \mathbf{C}^T$

- The Learned Trial Judge erred in law in ruling that $2.$ S.54 of the Uganda railways Corporation Statute 13 of 1992 merely restricts the mode of execution against the Corporation 's property. - The Learned Trial Judge erred in law and fact in $3.$ holding that matters relating to execution against the Respondent Corporation should conform to the Provisions of the provisions of the Government Proceedings Act. - The Learned Trial Judge further erred in law and in 4. fact by declaring that the Applicant/Appellant's application for leave of Court to apply for an order of mandamus was incompetent thereby dismissing it.

The application which is the subject of this appeal was ex parte, so is the appeal.

Mr. Mubiru, learned counsel for the appellant, argued grounds 1, 3 and 4 together and ground 2 separately. I shall deal with the matter in the same order.

The main complaint by the appellant in this appeal is that the learned judge was wrong in holding that the provisions of section 20(1) of Government Proceedings Act (Cap.69) are applicable to the respondent corporation. In his written submission, Mr. Mubiru argued that the respondent being a

$\overline{2}$

corporation did not. faII under the provisions of the Government O Proceedings Act.. He ciEed: Usanda Nat ional Examination Board v J. L. okello-okeLLo Civil AoolicaE.ion No.4 of 1988 Supreme Court

(unreported) as his authority on E.his point. The passage in t.he trial judge's ruling which prompted this

appeal reads as follows:

"Its is my view Ehat., as Uganda Railways Corporation is a government body which is predominant.ly, if not. who1ly financed by t.he government, (eee SecLion 25 of the StaEute) it. is part. and parcel of the government. It. is a scheduled Corporation by Virtue of Statutory Instrument. 28 of L978, it.em ³⁵ thereof. It. is therefore my understanding of Ehe above provisions and ot.hers referred to herein above thaE alL matters relat.ing to execution should conform with the provisions of Government Proceedings Act which by Virtue of Section 21(1) thereof, t.here is need Eo file a cert.ificate in a prescribed form issued by t.he Registrar CiviI while applying for leave Eo appfy for Mandamus under ^S. 3 9 of the ,Judicat.ure Statute and rule 3 of the Law Reform (Misce]Ianeous Provisions) (Ru1es of Court) ru1es, StatuEor '/ InsErument 74-1. tl

I agree wiEh Mr. Mubiru's cont.ention tshat the learned judge misdirected himseff r.rhen he held that section 20(1) of the covernment Proceedings Act is applicable to the respondent corporation. The Act. is only applicable to proceedings where the government is a parE.y Eo the suit. In the present suit. lhe government is not aE all involved. The respondent being a 1egal

entity can sue and be sued under the ordj-nary rules of civil procedure not. the procedure established under the Government Proceedings Act. 1f the appellant wanted to proceed under the Act iE (appellant) woufd have sued t.he government not t.he Uganda Railways Corporation. In the case of: UNEB v Okello-Okeflo (supra) the court was confronted with almost a similar problem when its had to decide whether the provisions of the Government Proceedings Act were applicabl-e Eo UNEB which is largely funded by the governmenE and controlled by government officers. The court had this to say:

o

rrBuE we t.hink t.hat. t.here is anot.her aspecE upon t hich this case realIy depends, that is that a litigant has a choice, whether or not !o sue a CorporaEion as an emanation of the covernmenc or as an j.ndependent. body. If it is wished to sue t.he Corporation as an emanation of government , then Ehe Government. Proceedings Act would be the appropriat.e AqL Eo folIow. If it is wished to sue t.he Corporation as an independent body, then the Civil- Procedure Act would be appropriate. It would seem Eo us Ehat the Board was sued as an independent body. "

In my view this stat.ement represent.s the correcE principle of the law on the matter. fn Lhe instant. case t.he appellant decided to sue the corporation as an independent body this puEting the case out of the operation of t.he provisions of the covernment Proceedi-ngs Act. In my view this holding disposes of grounds 1, 3l and :4 of the appeal and the appeal as whole. Therefore I see!.ro pJi.rt in dealing with t.he second ground

)

of appeal.

In the result, I would allow this appeal with no order as to costs since the matter was dealt with ex parte and the other party was never involved in the application. I would further order that the ruling of the High Court dated $28/5/98$ and any order made thereunder be set aside. I would also order that the application be remitted to the High Court for rehearing by another judge.

Dated at Kampala this 20^th day of Jan Mary 1999.

C. M. KAT JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL 4Ol98

CORAM: HON. MR. JUSTICE S. T. MANYINDO, DCJ, HON. MR. JUSTICE C. M. KATO, JA. HON. LADY JUSTICE A. E. MPAGI. BAHIGEINE, JA.

FIREMASTERS LIMITED :::::::::: APPELLANT VEITSTlS

UGANDA RAILWAYS CORPORATION:: :::::::: : RESPONDENT

(Appeal from the Ruling and Order of the High Court at Kampala ( D. Akiiki-Kiiza, Ag. J.) dated28l5l98 in Misc. Appl. No.4304 of 1998)

# . IUDGMENT OF MANYI

o

I read the judgment of Kato JA just delivered and I agree with it. Under section 3(2) of the Uganda Railways Corporation Statute ( No. l3 of 1992) that corporation is a body corporate and may sue and be sued in its corporate name. lt was sued in that capaciry.

It follows that the Govemment proceedings Act is not applicable to the case. Clearly the leamed trial Judge misdirected himself on the point. Grounds 1.3 and 4 of appeal were thus well taken.

In bringing the application for the writ of mandamus the appellant was not required to follow the procedure under the Govemment Proceedings Act as it was not applicable. The second ground must also succeed. I would therefore allow the appeal on all four grounds.

o As Mpagi - Bahigeine JA also agrees this appeal is allowed.

The ruling of the trial Judge is set aside. The application is reinstated to be heard bv another Judge. There will be no order as to costs.

t. Dated at Kampala this i& day of January, 1999.

S. T. MANYINDO

DEPUTY CHIEF JUSTICE

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO.40/98

CORAM: HON. MR. JUSTICE S. T. MANYINDO, DCJ. HON. MR. JUSTICE C. M. KATO, JA. HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA.

FIREMASTERS LIMITED ......... $\ldots$ APPELLANT

**VERSUS**

UGANDA RAILWAYS CORPORATION ....................................

(Appeal from the Ruling and Order of the High Court at Kampala (D. Akiiki-Kiiza, Aq. J.) dated 28/5/98 in Misc. Appl. No.4304 of 1998)

JUDGMENT OF A. E. MPAGI-BAHIGEINE, J. A

$...$

I have read the judgment of Kato, J. A. I entirely concur and can add nothing.

Dated at Kampala this $.7.0...$ day of $J.0$ Max-y.1999.

Xu A. E. Mpagi-Bahigeine JUSTICE OF APPEAL