Wakilii

Departed Asians Property Custodian Board v Jaffer Brothers Ltd (Civil Appeal 9 of 1998)

Supreme Court · [1999] UGSC 2 · 1999 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the Court of Appeal, which had allowed an appeal against the High Court's dismissal of a civil suit on preliminary objection and remitted the suit for hearing on the merits
Decision
Appeal dismissed; orders of the Court of Appeal confirmed and the case remitted to the High Court for hearing on the merits.

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Cited — treatment unverified cited in 12 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed the Custodian Board's appeal. The Board had been joined as a defendant not because the respondent had a cause of action against it, but because the original defendant applied under Order 1 r.10(2) of the Civil Procedure Rules for its presence as necessary to settle all questions in the suit. The Court of Appeal therefore had no occasion to dismiss the appeal or suit against the Board, and the absence of a cause of action was irrelevant to its continued joinder. As costs follow the event, the successful respondent was entitled to costs against the unsuccessful parties who opposed the appeal. The trial judge had erred in awarding costs against the respondent to defendants joined against its wishes.

Facts

The respondent, a Ugandan company owned by Asians expelled in 1972, was the registered proprietor of the suit property at Plot 9 Hill Lane, Kololo, Kampala. The Government vested the property in the Departed Asians Property Custodian Board under Decree No. 27 of 1973. In 1977 the Board sold it to Francis Nyangweso, who transferred it to Mohammed Magid Bagalaaliwo, registered as proprietor in 1980. Under the Expropriated Properties Act No. 9 of 1982 the property reverted to Government; Bagalaaliwo later obtained a consent judgment from the Attorney-General in 1991. In 1993 the respondent obtained a letter of repossession and sued Bagalaaliwo for vacant possession. On Bagalaaliwo's application, and over the respondent's objection, the Custodian Board and the Attorney-General were joined as second and third defendants to enable Bagalaaliwo's counterclaim for compensation. They argued preliminary objections of time bar, lack of locus standi and no cause of action, which the High Court upheld, dismissing the suit with costs. The Court of Appeal reversed and remitted the suit for trial. The Custodian Board alone appealed.

Issues

  1. Whether the Court of Appeal, having declined to find a cause of action against the appellant, erred in failing to dismiss the appeal against the appellant with costs.
  2. Whether the Court of Appeal erred in condemning the appellant to pay the respondent's costs of the appeal.
  3. Whether the Court of Appeal erred in setting aside the trial judge's dismissal of the suit and consequential orders.

Orders

  • Appeal dismissed.
  • Orders of the Court of Appeal confirmed.
  • Costs awarded to the respondent in the Supreme Court and in the courts below.

Key headnotes

Civil Procedure — Joinder of Parties — Order 1 r.10(2) — Necessary Party Distinguished from Party Against Whom a Cause of Action Exists
A person may be joined as a defendant under Order 1 rule 10(2) of the Civil Procedure Rules not because the plaintiff has a cause of action against that person, but because that person's presence is necessary to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit.
Civil Procedure — Joinder of Parties — Criteria for Necessary Presence under Order 1 r.10(2)
A person qualifies for joinder on the ground that his presence is necessary where the orders the plaintiff seeks would legally affect that person's interests and joinder avoids multiplicity of suits, or, on a defendant's application, where the defendant cannot effectually set up his desired defence unless that person is joined.
Civil Procedure — Costs — Costs Follow the Event
As a general rule costs follow the event, and the successful party is entitled to costs against the unsuccessful parties who opposed the claim.
Civil Procedure — Costs — Appellate Interference with Discretion as to Costs
An appellate court will not interfere with a lower court's exercise of discretion as to costs unless the discretion was exercised unjudicially or on a wrong principle, or the court took into account matters that are irrelevant or non-existent.
Civil Procedure — Costs — Costs Awarded to Defendants Joined Against the Plaintiff's Wishes
A trial court errs in principle in awarding costs against a plaintiff in favour of defendants who were joined to the suit against the plaintiff's wishes and on the application of another defendant.

Legislation cited (8)

  • Civil Procedure Rules O.1 r.10(2)
  • Civil Procedure Rules O.1 r.13
  • Civil Procedure Rules O.48 r.1 & r.3
  • Civil Procedure Rules O.7 r.11(a)
  • Civil Procedure Rules O.6 r.29
  • Civil Procedure Act s.27(1) (Cap.65)
  • Expropriated Properties Act No. 9 of 1982
  • Departed Asians' Property Custodian Board Decree (Decree No. 27 of 1973)

Cases cited (18)

  • Auto Garage and Others v Motokov (No.3) (1971) E.A. 514
  • Cottar v Attorney General for Kenya (1938) 5 EACA 18
  • Mera Farmers Co-operative Union v Abdul Aziz Suluman (No.1) (1966) E.A. 436
  • Dollfus Mieg et Compagnie S.A v Bank of England (1951) 1 Ch. 33
  • Montgomery v Foy, Morgan and Co. (1895) 2 Q.B. 321
  • Norbury Natzio & Co. Ltd v Griffiths (1918) 2 K.B. 369
  • Scherer v Counting Instruments Ltd (1986) 2 All E.R. 529
  • Santana Fernandes v Kara Arjan & Sons & Two Others (1961) E.A. 693
  • Horwell v London General Omnibus Co. Ltd (1877) 2 Ex.D. 365
  • Iron & Steel Wares Ltd v C.W. Martyr Co. (1956) 23 EACA 175
  • Hamilton v Seal (1904) 2 K.B. 262
  • Amon v Raphael Tuck & Sons Ltd (1956) 1 All E.R. 273
  • J.B. Kohli and Others v Bachulal Popatlal (1947) E.A. 219
  • Kiska Ltd v Angelias (1969) E.A. 6
  • Schanker Dar Mayer and Others v Trustees of the Rahimtulla Lalli Hirji Charitable Trust (1955) 22 EACA 18
  • Nirmal Singh v Ram Singh (1961) E.A. 168
  • Makerere Properties Ltd v Attorney General (Civil Appeal No. 36 of 1996)
  • Victoria Tea Estate Ltd v James Bemba and Another (Civil Appeal No. 49 of 1993)
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.