Wakilii

Mansukhlal Ramji Karia and Another v Attorney General and Others (Civil Appeal No. 20 of 2002)

Supreme Court · [2004] UGSC 53 · 2004 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal to the Supreme Court from a Court of Appeal decision affirming the High Court's dismissal of the suit on preliminary objections
Decision
Appeal dismissed; the suit land held to remain vested in Government and the dismissal of the appellants' suit affirmed

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Cited — treatment unverified cited in 1 (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 held it had jurisdiction: a challenge under section 15 of the Expropriated Properties Act to a Minister's decision is brought by way of ordinary suit, not a judicial appeal, so an unrestricted right of appeal lay under section 6(1) of the Judicature Act. On the merits, although the appellants were not barred by res judicata because they were not parties to Civil Appeal No. 36 of 1996 (and that contested issue was never tried on evidence), that earlier decision determined the status of the suit land in rem and so bound them as strangers. Section 2 of Act 9 of 1982 nullified the 1981–1982 transactions, leaving the land vested in Government. The appellants disclosed no cause of action against the second and third respondents and were not aggrieved parties. Appeal dismissed.

Facts

The suit land, Plot 13 Market Street Kampala, belonged to Makerere Properties Ltd (R2), whose Asian directors were expelled in 1972; the land vested in Government under the Departed Asians Property Decree 1973 and was managed by the Custodian Board. In 1981 the Board provisionally returned the land to R2. Sadrudin, a director, manipulated R2's shareholding, sold the land to the first appellant (Karia, A1) in 1981, and A1 was registered as proprietor in 1982. The Expropriated Properties Act 1982 then came into force. A repossession certificate was later issued to A1, but in High Court Company Cause No. 2 of 1992 the share transfers were found fraudulent. In Civil Appeal No. 36 of 1996 the Court of Appeal held the land had never validly left R2, that the transactions were nullified by Act 9 of 1982, and that the land remained vested in Government. The land passed through further transfers to the second appellant (Crane Finance, A2). The Minister cancelled A1's certificate and issued a fresh one to R2, prompting the appellants' suit.

Issues

  1. Whether the appeal was properly before the Supreme Court, namely whether a challenge to a Minister's decision under section 15 of the Expropriated Properties Act is an ordinary suit carrying an unrestricted right of appeal under section 6(1) of the Judicature Act.
  2. Whether the Court of Appeal decision in Civil Appeal No. 36 of 1996, to which the appellants were not parties, operated as res judicata against them.
  3. Whether the plaint disclosed a cause of action against the second and third respondents, who made no decision under the Act.
  4. Whether the appellants were aggrieved parties with an interest in the suit land at the time the Minister cancelled the repossession certificate.

Orders

  • Appeal dismissed.
  • Two-thirds of the costs awarded to the respondents in the Supreme Court and in the two courts below.

Key headnotes

Statutory Interpretation — Meaning of 'appeal' — Challenge to ministerial decision under section 15 of the Expropriated Properties Act
A challenge to a decision of the Minister under section 15(1) of the Expropriated Properties Act 1982 is instituted by way of an ordinary civil suit rather than a judicial appeal, because Regulation 15 of SI 1983 No. 6 applies the rules governing institution of suits and the Minister exercises an administrative, not a judicial, function.
Civil Procedure — Right of Appeal — Section 6(1) of the Judicature Act
Where a matter is commenced in the High Court by way of suit, an unrestricted right of appeal lies as of right to the Supreme Court under section 6(1) of the Judicature Act, the appeal being unrestricted and not made conditional on any procedure.
Civil Procedure — Res Judicata — Requirement to try a contested plea on evidence
Where res judicata is pleaded as a defence and the issue is contested, the trial court must try that issue and receive evidence establishing that the subject matter was litigated between the same parties or those claiming through them; it cannot be decided on the pleadings and submissions alone.
Civil Procedure — Res Judicata — Section 7 of the Civil Procedure Act — Non-parties
A person who was neither a party to the former proceedings nor a privy claiming under such a party is not barred by res judicata under section 7 of the Civil Procedure Act.
Land & Property — Judgment in rem — Determination of status of property binds strangers
A judgment of a competent court determining the status of property operates in rem and is conclusive as to that status against all the world, binding even strangers to the proceedings, although as a judgment inter partes it binds only the parties and their privies.
Land & Property — Expropriated Properties Act section 2 — Nullification of dealings in expropriated property
Section 2 of the Expropriated Properties Act 1982 nullifies all purchases, transfers, grants and dealings of whatever kind in expropriated property effected between 1973 and the Act's commencement on 21 February 1983, with the result that such property remains vested in the Government.
Civil Procedure — Cause of Action — Joinder of parties who made no decision under the Act
No cause of action lies under section 15 of the Expropriated Properties Act against a party who made no decision under the Act, since only the Minister's decision can be challenged; joining such a party is improper where the plaint discloses no right of the plaintiff violated by that party.

Legislation cited (22)

  • Expropriated Properties Act 1982 (Act No. 9 of 1982) s.15(1)
  • Expropriated Properties Act 1982 (Act No. 9 of 1982) s.14
  • Expropriated Properties Act 1982 (Act No. 9 of 1982) s.11
  • Expropriated Properties Act 1982 (Act No. 9 of 1982) s.2
  • Expropriated Properties Act 1982 (Act No. 9 of 1982) s.1(1)
  • Expropriated Properties Act 1982 (Act No. 9 of 1982) s.9(1)(d)
  • Judicature Act s.6(1)
  • Judicature Act s.39(1)
  • Civil Procedure Act s.2
  • Civil Procedure Act s.7
  • Civil Procedure Act s.83
  • Civil Procedure and Limitation (Miscellaneous Proceedings) Act 1969 (Act 20 of 1969) s.1
  • Civil Procedure Rules Order 1 Rule 10(2)
  • Civil Procedure Rules Order 42 Rule 1
  • Civil Procedure Rules Order 9 Rule 9
  • Expropriated Properties (Repossession and Disposal) Regulations 1983 (SI 1983 No.6) Regulation 15
  • Departed Asians Property Decree 1973 (Decree No. 27 of 1973)
  • Constitution of Uganda Article 132(2)
  • Constitution of Uganda Article 139(2)
  • Constitution of Uganda Article 137(5)(b)
  • Constitution of Uganda Article 126(2)(e)
  • Registration of Titles Act

Cases cited (16)

  • Habre International Co. Ltd v Ebrahim Arakhia Kassim and Others (Civil Application No. 14 of 1999)
  • Mohan Musisi Kiwanuka v Asha Chand (Civil Appeal No. 14 of 2002)
  • Hem Singh v Mahant Basant Das (1936) 1 All ER 356 (PC)
  • Secretary of State for India v Chelikani Rama Rao (1916) LR 43 Ind App 192
  • Mityana Ginners Ltd v Public Health Officer, Kampala (1958) EA 339
  • National Telephone Co v Postmaster General [1913] AC 546
  • Ismail Karshe v Uganda Transport Ltd (HCCS No. 553 of 1966)
  • United Assurance Co. Ltd v Attorney General (Civil Appeal No. 1 of 1986)
  • Jeraj Shariff v Chotai Fancy Stores (1960) EA 374
  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd (Civil Appeal No. 9 of 1998)
  • Ladak A. Mohamed Hussein v Griffiths Kakiiza and 2 Others (Civil Appeal No. 8 of 1995)
  • Mohamed Allibhai v W.T. Bukenya and DAPC Board (Civil Appeal No. 56 of 1995)
  • Habre International Ltd v Francis Rutagarama (Civil Appeal No. 3 of 1999)
  • Yahaya Kiriisa v Attorney General (Civil Appeal No. 7 of 1994)
  • Famous Cycle Agencies Ltd and 4 Others v Mansukhlal Ramji Karia (Civil Appeal No. 16 of 1994)
  • Gokaldas Laxmidas Tanna v Sr. Rosemary Muyinza and DAPC Board (Civil Appeal No. 12 of 1992)
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