Wakilii

The Attorney General v Silver Springs Hotel Limited & 9 Others (Civil Appeal 1 of 1989)

Supreme Court · [1989] UGSC 10 · 1989 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal to the Supreme Court from a High Court ruling, on a single point of law reserved by the parties' consent
Decision
Appeal allowed; the High Court's finding that it could grant an injunction against the Government was set aside

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Holding

The Supreme Court allowed the Attorney General's appeal and held that, under the law of Uganda, the courts have no jurisdiction to grant an injunction, interlocutory or final, against the Government or its officers acting in their official capacity. Section 15 of the Government Proceedings Act, a special enactment protecting the Government from injunctions, is not in conflict with, and was not impliedly repealed by, the general provisions of section 36 of the Judicature Act 1967 via section 42. The word 'any person' in section 36 does not include the Government, which is bound only by express words or necessary implication. The High Court therefore erred in finding it had jurisdiction to enjoin the Government.

Facts

Following Idi Amin's 1972 expulsion of non-Ugandan Asians, businesses of expelled Asians were vested in the Departed Asians Property Custodian Board. H.G. Gandesha, a Ugandan citizen, fled the country; his properties were wrongly taken over and vested in the Board as though he were a non-citizen. On his return he repossessed his property, obtaining eleven certificates of repossession from the Minister of Finance. The Minister later decided to cancel the certificates and repossess the properties. Gandesha and nine companies in which he was shareholder and managing director appealed to the High Court under the Expropriated Properties Act 1982. The Attorney General's motion to dismiss that appeal was refused, and the respondents obtained a temporary injunction restraining the Government from interfering with the properties. The Attorney General appealed. The parties settled out of court, reserving for the Supreme Court the single question of law whether an injunction can be granted against the Government of Uganda or its officers.

Issues

  1. Whether, according to the law of Uganda, an injunction can be ordered by the court against the Government of Uganda or any of its officers.
  2. Whether section 36 of the Judicature Act 1967 conflicts with and impliedly repeals section 15 of the Government Proceedings Act, Cap. 69, by operation of section 42 of the Judicature Act.
  3. Whether the expression 'any person' in section 36 of the Judicature Act includes the Government.
  4. Whether a person representing the interests of a party may be permitted to take part in the proceedings as an amicus curiae.

Orders

  • Appeal allowed.
  • Held that the courts of Uganda have no jurisdiction to grant an injunction against the Government or its officers in their official capacity.
  • Costs of the appeal and of the court below awarded to the appellant.

Key headnotes

Government Proceedings — Injunctions against the Government — Crown immunity from injunctive relief
The courts of Uganda have no jurisdiction to grant an injunction, whether interlocutory or final, against the Government or against an officer of the Government acting in an official capacity where the effect would be to grant relief against the Government; section 15 of the Government Proceedings Act confines the court to a declaratory order in lieu of an injunction.
Implied repeal — generalia specialibus non derogant — special Act not repealed by later general Act
A special Act is not repealed by a later general Act unless there is express reference to the earlier legislation or a necessary inconsistency in the two Acts standing together; the general provisions of section 36 of the Judicature Act 1967 did not impliedly repeal the special provisions of section 15 of the Government Proceedings Act.
Crown/Government bound by statute only by express words or necessary implication
An Act of Parliament does not bind the Government unless the Government is named expressly or is bound by necessary implication; a privilege or immunity of the Government conferred by an earlier statute cannot be removed by a later statute save by express provision or necessary implication.
Meaning of 'any person' in section 36 Judicature Act — exclusion of the Government
The expression 'any person' in section 36 of the Judicature Act 1967 does not include the Government; where the Interpretation Decree 1976 separately defines 'person', 'Government' and 'Attorney General', a general reference to 'person' cannot be read as embracing the Government.
Amicus curiae — requirement of independence and of invitation by the court
An amicus curiae must be an independent person invited by the court; a person who represents the interests of a party to the matter cannot be appointed amicus, and it is not open to a person to apply to be invited as amicus.

Legislation cited (14)

  • Government Proceedings Act, Cap. 69 s.15
  • Government Proceedings Act, Cap. 69 s.15(1)
  • Government Proceedings Act, Cap. 69 s.15(2)
  • Judicature Act No. 11 of 1967 s.36
  • Judicature Act No. 11 of 1967 s.36(1)
  • Judicature Act No. 11 of 1967 s.36(3)
  • Judicature Act No. 11 of 1967 s.35
  • Judicature Act No. 11 of 1967 s.42
  • Judicature Act No. 11 of 1967 s.48
  • Crown Proceedings Act 1947 (UK) s.21
  • Crown Proceedings Act 1947 (UK) s.21(1)
  • Crown Proceedings Act 1947 (UK) s.21(2)
  • Interpretation Decree No. 18 of 1976 s.2
  • Expropriated Properties Act No. 9 of 1982

Cases cited (11)

  • Underhill v Ministry of Food [1950] 1 All ER 591
  • International General Electric Co of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784
  • Merricks v Heathcoat [1955] Ch 567
  • Re Williams (1887) 36 Ch D 573
  • Prenchand Nathu & Co Ltd v The Land Officer (1962) EA 738
  • Province of Bombay v Municipal Corporation of Bombay (1947) AC 58
  • British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32
  • Kutner v Phillips (1891) 2 QB 267
  • Aberdeen Suburban Tramways Co v Aberdeen Magistrates (1927) AC 683
  • Seward v The Vera Cruz (1884) 10 App Cas 59
  • Ministry of Agriculture, Fisheries and Food v Jenkins [1963] 2 QB 317
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.