[1999] UGHC 56

## REPUBLIC OF UGANDA THE

IN THE HIGS COURT OF UGANDA AT MBALE 78/1998 HIGH COURT MISC. APPL. NO. ( arising from M. A. 22/97, 23/97 & 32/97 Soroti cour

$\cdots$ APPLICANT /J/0 SOROTI MUNICIPAL COUNCIL

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UGANDA LAND COMMISSION $\alpha$ $\delta$ :::: $1.$ 1st Respondent J/B ATTORNEY GENERAL $\mathcal{L}$ 2nd Respondent

BEFORE: HON. JUSTICE D. N. MANIRAGUHA,

## $\underline{R} \ \underline{U} \ \underline{L} \ \underline{I} \ \underline{N} \ \underline{G}$

Soroti Municipal Council - the applicant, lodged this application under S. 22 of the Government Proceedings Act Cap. 69, under Rule 16 of the Civil Procedure) (Government Proceedings) Rules S. 1. 69-1, and under S. 55 (2) of the Land Act, $16/98$ .

The application is against the Uganda Land Commission 1st Respondent, and the Attorney General, Second Respondent and is by Chamber Summons supported by an affidavit of Mr. Opolot Odelle The Town Clerk of the applicant. It has five annextures to it whereof the applicant seeks for the rfollowing orders:-

**CRIGINAL**

That the first respondent be restrained a) from receiving money from Government, and directing payment thereof to the applicant, and Costs of this application be provided for. b)

The general grounds in the affidavit are as follows:-

$\cdot$ $\cdot$ /2

Mr. Emoru, learned Counsel for the applicant has ergued that the applicant is entitled to the remedies sought under $\sim$ . 22 of the inverse in proceedings of which sets out the prerequisite conditions before such orders can be made. That these conditions are repeated in $\pi$ ule 16 of the Civil Procedure ( Government Proceedings ) Rules and Rule 22 (1) thereof.

He bases himself on the following grounds :-

- That money is payable by the Government to $\langle 1 \rangle$ the Uganda Land Commission under $\mathcal{S}_\bullet$ 55(2) of the Land Act: - $2)$ The Umanda Land Commission is indebted to the applicant to the tune mertioned above: - If money payable by the Government to the ス) Uganda Land Commission was money navable by a private person, it could have been garnished: - Such money payable by the Government has no $4)$ rectriction on being charged or taken in execution: - Such money is not payable by Government to any $51$ person on account of a denosit in the Tost Office Savings Bank.

He relied on Justice Augustus Kania's decision in H. C. M. A. No. 21 of 1007 indalalare Industries Ltd. vrs Tororo Local Government/Council ? The Attorney General, where a similar question arose and was resolved in favour of the applicant.

I CERTIES THAT THIS A TRUE COPY OF THE CALACT

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**Paragraphy and progressively**

- money is payable by the Government to the $i$ 1st respondent out of funds appropriated by Parliament for all its expenses :- - the first respondent is under orders of court ii) in Misc. Applications Nos. 22/97, 23/97and 32/97 to pay the applicant a total of shs. $52,655,306$ -( shillings fifty two million six hundred fifty five thousand three hundred six only ); - if the money so owed by the Government to the iii) 1st respondent was money payable by a private person, under rules of court to obtain an order for the attachment thereof as a debt due or accruing due ; - Such money is not by any enactment prohibited $iv)$ or restricted from being assigned, charged or taken in execution; and - it is not payable by Government to any person $v$ ) on account of a denomit in the Post Office Savings Bank.

I CERTIFY THAT

A TRUE CUPY OF THE ORIGINAL

Briefly what led to this application is that in the three Fisc. Applications the applicant did obtain judgment in Scroti courts for a total sum of she. 52,655,306 /- which by the time this application was lodged was still outstainding. cubsequently a sum of she. $24,320,970$ /= was paid leaving a balance of shs. $28, \frac{774}{4}, \frac{736}{5}$ /= which is due up to now. The applicant by these proceedings wants this court to make the order prayed for above so as to endure full navmne.t

He argued that in the affidamit in reply the respondent's only contention is that they don't have enough money to satisfy the debt at a go but in instalments. $\mathbf{H}_{\mathbf{C}}$ said that it was not for the court to look for funds for them, morever they had not stated as to when they could Day the next instalment(s).

$\mathcal{L} = \mathcal{L} \mathcal{L}$

As the money paid was after these proceedings had been instituted as pressure, he ask a court to grant the orders above so as to make the respondents pay.

Mr. Madrama C. Senior State Attorney who appeared for the respondents opposed this application on the following grounds :-

> That the money in issue ( sought to be the subject $1.$ of any order ) is appropriated funds which has a specified purnose and its, therefore, restricted within the meaning of section 22 of the Government Froceedings Act, and the rules made thereaunder. That the Uganda Land Commission is a Government department in its functions and is not a private person falling under S. 22 of two Act.

if these monies were attached as prayed; it would interfere with the normal functioning of the Government demantment and the budgetory proceedires of government.

He argues that $\circ$ . 55 (2) of the Land Act makes $\alpha$ . " All expenses incurred by or on behalf of the Commission

$1.11.15$

I CERTIFY THAT THIS IS<br>TRUE COPY OF THE ORIGINAL

**REGISTRAR**

$\overline{\text{DEPUTY}}$

in connection with or incidental to the performance of its functions under the Act shall be out of funds appropriated by parliament," which is done under trials 154 (1) (a) of the 1995 Constitution. That this restricts the use of the money charged on the consolidated Fund except the expenditure allowed by the constitution or an Act of parliament.

$4^r$

$1.$

$\frac{1}{2}$

Here the money sought to be attached being the Treasury releases of a sum of shs. 15,987,600 - to the Uganda Land Commission and out of that is shs. $7,500,000$ /for Assessment : getes That all the other money is appropriated for a special purpose under S. 3 of the Appropriation Act 18/1998 and are restricted and can not be attached, and so the rates can only be paid for in instalments as per releases.

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Having addressed my mind to the arguments from each side, only one issue emerges to be resolved, namely if the mentioned money is such as contemplated by the provision s of Section 22 of The Government Proceedings Act and therefore subject to such an order as stipulated therein.

First I have been urged by Mr. Emoru to consider the holding in the case cited to this court and since it is en all fours with this one hold similary. So I proceed to analyse the approach adopted in that case, in comparison with the circumstances of this case.

..../6

I CERTIFY THAT THIS IS A TRUE-COPY OF THE ORIGINAL

**EGISTRAR**

There court based its decision on the finding that the "Mconditional grant " to the respondent was " money payable to the Respondent as envisaged by section 22 of the Government Proceedings Act, "hence subject to such an order<br>being noods", in MON case, the major mouse may<br>"unconditional grant "under Article 84 (1) (a) of the Constitution, but in the present case Mr. Madrama has argued that the morey is appropriated for specific purpose under Section 3 of the Appropriation Act, 1998 which reads as follows :-

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The sums granted by this Act shall be appropriated $\eta$ for the services and purposes in the amounts specified in columns 1 and 2 of the Schedule hereto." Under that schedule item 012 states that the money is for " $\pi$ ecurrent Expenditure on salaries and expenses under the Ministry of Lands .... " which covers the Uganda Land Commission under S. 55 of the Land Act.

Is this money, therefore, liable to a restraining order under S. 22 of the Government Proceedings Act? The section provides that.

Where any money is payable by the Government $\frac{1}{22}$ . (1)

| | <b><i><b>INSURANCE</b></i></b> | |---------------------------------------|--------------------------------| | | | | IN THAT THIS IS | <br>CERST AR | | State and a contract to be a state of | | | | DEPUTY | | A TRUE COPY OF THE OXIGINAL | | | | | | | |

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to some person who, under any order of any court, is liable to pay any money to any other person, and that other person would, if the money was so payable by the Government were money payable by a private person, be entitled under rules of court to obtain an an order for the attachment thereof as a debt due or accruing due, the High Court

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$V_{D}$ may, subject to the provisions of this Act and in accordance with rules of court, make an order restraining the first montioned person from receiving that money and directing payment thereof to that other person :-

The key words in this provision are " is liable to pay any money to any other person, and that other person would, if the money so payable by the Government were money payable by a private person, be entitled under rules of court to obtain an order for the attachment thereof as a debt due or accruing due .... "

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In case of such a private person to attach a debt he would have to revert to Order 20 of the Civil Procedure Rules and obtain a Garnishes Order. This has, however, been excepted from the Government under Rule 15 (b) of The Civil Procedure ( Government Proceedings Rules), and by rule 16 thereof the type of procedure being here considered was prescribed.

If such a restraining order has to be made then there must have been " money due or accruing on alleged to be due or accruing from the Government " and this should have been by an appropriate count order in a suit against or by the Government under Section 20(1) of the Government Proceedings Act. To strengthen this view are the provisions referred to court by the learned counsel for the applicant which show that the monarreferred to is " debts " --- " any money due on accruing

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due " as in rule 16 of The Givil Procedure (Government $\psi$ ) Proceedings ) $\mathbb{R}_{\mbox{ules}}$ and 8. 22 of the Act where a garnishee order could issue in respect of a private reason.

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HIS IS<br>ORIGINAL THIS

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**VERTICY**

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Furthermore, under rule 16 (5) of the said Rules. it provides that " $\perp$ f the Government disputes liability the court may order that any issue --- or question in a suit may be tried or determined. Where it is contended by the Government that the debt ... such debt ....."

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In rule 16 (6) of the Rules it speaks of 'a "judgment - debtor " means the person against whom $1^c$ the order for the attachment of debts --- could have been obtained, and " judgment creditor " means the person in whose favour such an order could have been obtained, if in each case the money in respect of which the order is sought had been due or accruing due from a private person.¹⁴ $^{\text{r}}$ rom all the above, it is my considered view that S. 22. of The Government Proceedings Act applies only to if made against a private person have been subject<br>to carpishee proceedings we Bebts where judgment and necessary orders have been $\cdot$ if made against a private person have been subject to carsishee proceedings under $0.20$ of the Civil Procedure Rules which in the case of the Government DEPUTY have been excluded and alternative procedures provided.

In the present case then the question is whether money released by the Government under the Appropriation Act, 1998 out of the Consolidated Fund amounts to " a debt due and accruing due " from the Government to the Ministry that can be subject to a restraining

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since it does not r? se out of ^a proceedings that render it ^a debt or money. due or accruing due that could loyally be subject to if it had been money arising from a This is a statutory ^rant and not a debt at all. 10 of The Land Act does not create a debtor/creditor Land Commissi on and hence Q. 22 of the Government Act can not apply to funds Appropriated by Parliament as if they were a debt. ¹⁵ Government that can b° private person. So S. 55 (?) warnishee proceedings t is my view that such a grant from ube Govern: ent is not money o^ed to the Uganda Lend Commission by the rovi sion° above subjected to t'^e court order in any Ci^Hl relationship between the Government and the Uganda ^rcceedinws

forever, this Section 22 of The Government Proceedings Act under which this application was brought falls under Part IV of the Act which is headed are " JUDGT ENTS AMD EX^CUTT0H" **p** Government. or againt the Government. -19,20,21 and ²² which deal with matters where there Civil proceedings by or against the This part deals with such matters of Civil proceedins by This can be seen from rules

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If the Uganda ^and Commission in the present cfise in its corporate capacity ^a money had say In itis corporate cppacrry has sued and obtained judgment against the Government thus beinf owed the Government the situation could have been different. ^I CERTi?Y THAT THIS IS ]

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^A TRUE COPY OF THE CRIMINAL j

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But in the present circumstances, the Government has not been party to any civil proceedings and judgment obtained against it by the Uganda Land Commission so as to make any money thus owing from the Government to the Uganda $L_{\mbox{end}}$ $C_{\mbox{ommission}}$ liable to a restraining order by the judgment creditor ( the present applicant ), $as$ against the judgment debter ( the 1st respondent ).

With the above in view, this court finds that this money can not be subjected to the provisions of S. 22 of the Act, nor Rule 16 thereof. This is not an appropriate case where a restraining court order should be made.

Consequently I find and hold that the applicant has not satisfactorily established the pre-requisite conditions for the grant. This application fails and is dismissed with costs to the respondents.

> D. N. MANIRAGUHA, AG. JUDGE, 27.10.99


# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

MISC. APPLICATION NO. 78 OF 1998

(Arising from Soroti Chief Magistrate's Court Miscellaneous Application Nos. 2? of 1997, 23 of 1997 and 32 of 1997)

SOROTI MUNICIPAL COUNCIL

## **APPLICANT**

#### **VERSUS**

**UGANDA LAND COMMISSION** $\mathbf{1}$ . **RESPONDEN'IS** $2.$ THE ATTORNEY GENERAL

## **ORDER**

This application coming on this day for first disposal before HIS LORDSHIP DEO MANIRAGUHA in the presence of FERDINARD NATSOMI on brief of VINCENT L'OKUCHA EMORU, counsel for the applicant, and in absence of the respondent although served.

IT IS ORDERED that the application fails and is dismissed with costs to the respondents:

GIVEN under my hand and the seal of the Court on this 27^th day of October 1999. **DISTRICT REGISTRAR.** DEPUTY REGISTRAR **MBALE**

#### ORDER EXTRACTED BY:-

M/S EMORU & CO. ADVOCATES, PLOT 13A PARLIAMENT AVENUE, CARGEN HOUSE, SUITE NO. 15, $P. O.$ BOX 3155, KAMPALA.