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China Road & Bridge Corporation v Welt Machinen Engineering Limited (Civil Appeal 13 of 2019; Civil Appeal 14 of 2019)

Supreme Court · [2022] UGSC 8 · 2022 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the Court of Appeal in two consolidated civil appeals arising from a High Court suit and review proceedings concerning mining of granite.
Decision
Appeal partly allowed; the Court of Appeal's compensation order in favour of the 1st respondent set aside, the location licences declared null and void, and the 1st respondent ordered to pay UGX 23,995,130,000 to the Nakapiripirit District Land Board within 60 days.

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Holding

The Supreme Court partly allowed the appeal. Granite excavated and crushed into aggregate for road construction is 'stone commonly used for building or similar purposes' and is therefore excluded from the definition of 'mineral' under Article 244(5) as amended; the Mining Act 2003 provisions purporting to regulate such excluded substances are void for inconsistency, so the location licences and any requirement for a mining licence fell away. The Court of Appeal had no jurisdiction to interpret the Constitution in ordinary civil appeals, rendering that part of its decision a nullity. The District Local Government lacked capacity to contract over the land; that power vests in the District Land Board. HCCS No. 278 of 2016 was res judicata. Compensation of UGX 23,995,130,000 was redirected to the Nakapiripirit District Land Board.

Facts

In 2013 the appellant, contracted by UNRA to build the Moroto–Nakapiripirit road, hired the Kamusalaba rock from Nakapiripirit District Local Government for UGX 50,000,000 and began quarrying granite aggregate. The 1st respondent then obtained location licences (LL1194 and LL1195) over the area from the Ministry of Energy and Mineral Development and asserted exclusive mining rights. It sued the appellant, an official and the District for trespass in HCCS No. 16 of 2014 at Soroti. Wolayo J found the appellant had not trespassed on the licensed area, but ordered it to account to the Attorney General and pay Government the value of granite mined. Days later the Solicitor General sought ministry verification, which reported part of the rock fell within LL1194; on that basis the 1st respondent filed HCCS No. 278 of 2016 for unjust enrichment, leading to consent judgments and review proceedings before the same judge in Kampala. The Court of Appeal dismissed the appellant's appeal and awarded compensation of UGX 23,995,130,000 to the 1st respondent. The appellant appealed to the Supreme Court.

Issues

  1. Whether industrial granite rock excavated for road construction is a 'mineral' within Article 244 of the Constitution as amended.
  2. Whether the hire agreement between Nakapiripirit District Local Government and the appellant for extraction of granite was valid.
  3. Whether the 1st respondent procured and held its location licences fraudulently and illegally.
  4. Whether the Court of Appeal, sitting in ordinary civil appeals, had jurisdiction to interpret Article 244 of the Constitution.
  5. Whether the Registrar had power to enter judgments on admission in HCCS No. 278 of 2016 and Misc. Apps. Nos. 700 and 806 of 2016.
  6. Whether the issues in HCCS No. 278 of 2016 were res judicata.
  7. Whether a judge could review and vary, from a different High Court station, a decree she had passed in the High Court at Soroti.
  8. Whether the appellant (or the 1st respondent) was entitled to compensation for the value of the excavated granite, and who should receive it.

Orders

  • Granite stone is not a mineral but a stone commonly used for building purposes.
  • The Mining Act does not apply to substances excluded from the definition of a mineral in the Constitution.
  • The location licences No. LL1194 and LL1195 held by the 1st respondent were null and void.
  • The rightful entity to hold and allocate land not owned by any person in Nakapiripirit District is the Nakapiripirit District Land Board.
  • The 1st respondent shall pay UGX 23,995,130,000 to Nakapiripirit District Land Board within 60 days, being the value of the granite wrongfully exploited from the Kamusalaba rock.
  • Parliament may pass a law to regulate the exploitation of any substance excluded from the definition of mineral when exploited for commercial purposes in accordance with Article 244(6).
  • Each party shall bear their own costs.

Key headnotes

Constitutional Law — Minerals — Definition under Article 244 — Stone for building or road construction excluded from 'mineral'
Granite excavated and crushed into aggregate for road construction is a stone 'commonly used for building or similar purposes' and is therefore excluded from the definition of 'mineral' under Article 244(5) of the Constitution as amended; its exploitation does not require a prospecting or mining licence under the Mining Act.
Statutory Interpretation — Mining Act 2003 — Inconsistency with the Constitution — Void provisions
Provisions of the Mining Act 2003 that define building and industrial minerals and purport to regulate substances excluded from the constitutional definition of 'mineral' are void for inconsistency with Article 244 as amended; an Act enacted in 2003 could not incorporate Article 244(6), which was introduced only by the Constitution (Amendment) Act 2005 and does not operate retrospectively.
Constitutional Law — Jurisdiction — Interpretation of the Constitution reserved to the Constitutional Court under Article 137
Interpretation of the Constitution is the preserve of the Constitutional Court under Article 137; where a constitutional question involving a substantial question of law arises in ordinary proceedings, the court must refer it. A Court of Appeal sitting in ordinary civil appeals that interprets the Constitution acts without jurisdiction, and its decision on that question is a nullity.
Land & Property — District Land Board — Capacity to allocate or contract over unowned land
Power to hold, allocate and otherwise deal with land in a district not owned by any person vests exclusively in the District Land Board under Article 241 and sections 59 and 60 of the Land Act; a District Local Government has no capacity to contract over such land, and an agreement it purports to make is void ab initio.
Civil Procedure — Res Judicata — Section 7 Civil Procedure Act — Re-litigation through a new cause of action
A subsequent suit that seeks to re-litigate an issue of ownership already directly and substantially decided between the same parties, dressed up as a new cause of action such as unjust enrichment, is barred by res judicata under section 7 of the Civil Procedure Act; the bar extends to every point belonging to the subject matter that could have been raised in the earlier proceedings.
Civil Procedure — Review — Functus officio — Court that passed the decree
Review under section 82 of the Civil Procedure Act must be conducted by the court that passed the decree. The judicial office is not personal to its holder; a judge transferred to another High Court station cannot review or set aside a decree she passed while constituting the High Court at a different station, and to do so is to act when functus officio.
Civil Procedure — Sanctity of judgments — Permissible modes of variation
The sanctity of a judgment is paramount; it may be varied only by an appellate court, reviewed by the same court that issued it, or corrected under the slip rule where the alteration accords with the court's intention at delivery. Executive correspondence cannot vary the determination of a court.

Legislation cited (37)

  • Constitution of Uganda 1995 art.244
  • Constitution of Uganda 1995 art.241(1)
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.139
  • Constitution of Uganda 1995 art.119(4)
  • Constitution of Uganda 1995 art.119(5)
  • Constitution of Uganda 1995 art.126(1)
  • Constitution of Uganda 1995 art.2(1)
  • Constitution of Uganda 1995 art.2(2)
  • Constitution (Amendment) Act No. 2 of 2005 s.43
  • Mining Act 2003 s.2
  • Mining Act 2003 s.21(a)
  • Mining Act 2003 s.34(2)
  • Mining Act 2003 s.54(2)
  • Mining Act 2003 s.60(1)
  • Mining Act 2003 s.89
  • Land Act s.59
  • Land Act s.60
  • Land Act s.73
  • Civil Procedure Act s.7
  • Civil Procedure Act s.82
  • Civil Procedure Act s.98
  • Civil Procedure Rules Order 50 r.1
  • Civil Procedure Rules Order 50 r.2
  • Civil Procedure Rules Order 46
  • Judicature Act s.33
  • Leadership Code Act s.9
  • Leadership Code Act s.10
  • Leadership Code Act s.14
  • Anti-Corruption Act s.8
  • Anti-Corruption Act s.9
  • Mining Regulations SI 71/2014 reg.30
  • Mining Regulations SI 71/2014 reg.34
  • Mining Regulations SI 71/2014 reg.54
  • Mining Regulations SI 71/2014 reg.70
  • Statutory Instrument No. 97 of 2014
  • Rules of the Supreme Court r.30(1)

Cases cited (20)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Uganda Breweries Ltd v Uganda Railways Corporation (Civil Appeal No. 6 of 2001)
  • Lutalo Moses v Ojede Abdallah Bin Cona (Civil Appeal No. 15 of 2019)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Fredrick Zaabwe v Orient Bank (Civil Appeal No. 4 of 2006)
  • Takhar v Gracefield Developments Ltd [2019] UKSC 13
  • Makula International Ltd v Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
  • FAM International Ltd v Mohamed Hamid (Civil Appeal No. 4 of 1981)
  • Attorney General v Kamoga (Civil Appeal No. 8 of 2004)
  • NRM v Kampala Modernity & Printers Ltd (Miscellaneous Application No. 6 of 2016)
  • Nsimbe Holdings v Attorney General (Constitutional Petition No. 2 of 2006)
  • Etot Paul Peter v Attorney General (Civil Suit No. 252 of 2015)
  • Interfreight Forwarders Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Hill Estate vs. Chevron Standard (1992) 83 Man. R 58 (CA)
  • Mansukhlal Ramji Karia v Attorney General (Civil Appeal No. 20 of 2002)
  • Kampala City Council Authority v National Housing and Construction Corporation (Civil Appeal No. 2 of 2004)
  • Boutique Shazim Ltd v Norattan Bhatia (Civil Appeal No. 36 of 2007)
  • Bulasiyo Kkonde v Buladina Nankya (Civil Appeal No. 7 of 1980)
  • SINBA (K) Ltd v Uganda Broadcasting Corporation (Civil Appeal No. 3 of 2014)
  • Attorney General v Bumero Estates Ltd (Civil Application No. 25 of 2019)
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