THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(EXECUTION AND BAILIFFS DIVISION)
MISCELLANEOUS APPLICATION NO. 1409 OF 2017
(ARISING OUT OF CIVIL SUIT NO. 675 OF 2012 AND CIVIL APPLICATION NO. 778 OF 2016)
GLORY RANCHERS LIMITED ------------------------- APPLICANT
- ATTORNEY GENERAL
- TREASURY OFFICER OF ACCOUNTS / SECRETARY TO TREASURY ---------------------------------------- RESPONDENTS
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
This application was made under rules 38 (1) (a), 6 (1) and (8) of the Judicature (Judicial Review) Rules 2009, and 0.52 r1 of the C.P.R, moving court for orders that:-
- An order of mandamus issues against the Second Respondent for payment of the decretal sum in CS 675/2012, amounting to Shs. 4,294,017,315/- together with interest therein at 10% per annum from 21.12, until payment in full.
- Taxed costs of the suit in the sum of Shs. 50,773,591/- together with interest at the rate of 6% per annum from 14.11.14, till payment in full were also applied for; plus costs of the application.
The grounds for the application are that:-
The Applicant was the successful party in C.S 675/2012, where judgment was delivered on 21.12.12 and court ordered that:-
- The entry by Uganda Government’s Agents on the Applicant’s land comprised in LRV 1051 Folio 10, Mawogola Ranch No.53, Buddu, measuring 3.245.96 acres, the subdivision thereof and giving it to the said parties amounted to trespass.
- The First Respondent was directed to handover vacant possession of the suit land to the Applicant within six (6) months from the date of the judgment. In addition, the First Respondent was ordered to pay Shs. 560,089,215/- as disturbance allowance within the same period of time.
- In the alternative, court ordered that if the First Respondent found it impossible to return the Applicant’s land, then the First Respondent had to pay compensation to the Applicant in the sum of Shs. 4,294,017,215/- inclusive of disturbance allowance, together with interest at 17 per annum on the said sum and costs of the suit from the date of judgment till payment in full.
- Costs of the suit were also awarded to the Applicant.
That upon the First Respondent’s failure to handover vacant possession of the said land to the Applicant within the period directed by court, the Applicant become entitled to compensation in the monetary terms specified in ground 1 ( c) above.
The First Respondent was dissatisfied with the awards of interest in the judgment and filed Civil Appeal No. 06/2014, in the Court of Appeal.
By consent of the Applicant and the First Respondent, sealed by court on 04.08.14, the interest in the orders was reduced to 10% per annum.
The Applicant’s costs of the suit were taxed and a Certificate of Order against Government was issued on 25.11.14 and served in the Respondents on 26.11.14.
There is no pending appeal arising out of the said suit and the Applicant is entitled to payment of the decretal sum as certified in the certificate of order.
The Second Respondent is an officer of Government with the statutory responsibility of settling Uganda Government judgment debts.
To date, the certificate of order remains unsettled inspite of several written demands to the Respondent.
The Second Respondent is unlikely to settle the judgment debt due under the said certificate of order unless he is compelled to do so by court by order of mandamus.
It is only just and equitable that an order of mandamus be issued compelling the Second Respondent to settle the decretal sum in accordance with the said certificate of order.
The application is supported by affidavit of Emmanuel T. Kikoni, which was read and relied upon at the hearing.
There is an affidavit in reply deponed by Clare Kukunda, a State Attorney in the Ministry of Justice and Constitutional Affairs.
She admits that the Applicant was the successful party in C.S. 675/2012. However that, the payment or satisfaction of decrees and court orders is effected through provision of funds by the Ministry of Finance Planning and Economic Development to the Attorney General’s chambers on a quarterly basis in each given financial year.
That the Government is committed to satisfying the Applicant’s decretal sum as directed by court, as soon as there is appropriation of funds by Parliament of Uganda, at the request of the Ministry of Finance.
It is therefore in the interests of justice not to issue the order of mandamus in circumstances where the Respondent has demonstrated willingness to satisfy the decretal sum.
The issuance of the order of mandamus against the Respondents is therefore opposed.
There is an affidavit in rejoinder sworn by Emmanuel Kikoni, where he reiterated that the Respondents have neglected and or refused to compensate the Applicant as directed by court in its judgment of 21.12.12 and the settlement of the parties in C.A 06/14.
He disputed Government’s commitment to settle the decretal insisting that the certificate of order served on the Respondents on 24.11.14, together with the judgment and decree in C.S. 675/12 have been ignored by the Respondents.
All written demands for payment as evidenced by Annextures A7, A8 and A9 to the affidavit in reply have been ignored by the Respondents.
Further that, there is no willingness by the Respondents to comply with the court orders to compensate the Applicant.
The civil suit of 2012 was filed after Government failed to honor its promises since 1986, to compensate the Applicant, and the failure follows a pattern set by the Government of Uganda since 1986.
It is in the interests of justice that the order of mandamus issues compelling the Second Respondent to settle the decretal sum as directed by court, to remedy the injustice suffered by the Applicant since 1986, when the Government of Uganda wrongfully took over the Applicant’s land, subdivided it and distributed the same to third parties.
The application was called for hearing on 28.06.17, in the absence of the Respondents. But since the affidavit of service dated 26.06.17, showed that the Respondents had been served on 23.06.17, the notice of motion received on the same date at the Ministry of Justice and Constitutional Affairs, and receipt of the same acknowledged; and there being no reasons advanced for the absence of the Respondents, court allowed hearing to proceed exparte.
Counsel for the Applicants went through the orders sought by the Applicant, the grounds of the application and the affidavit of the Applicant. The grounds have already been referred to in this ruling.
Later Counsel for the First Respondent appeared and was permitted to participate in the proceedings. He applied to be given adjournment to enable him file the affidavit in reply and matter was adjourned to 29.06.17 at 2:30 pm.
Counsel for the Applicant continued from where he had left off. Stating that the appeal filed by the First Respondent against the rate of interest awarded to the Applicant was withdrawn after the interest and the damages was reduced to 10 per annum and that on the costs to 6% per annum on the date of taxation by consent of the parties. - See notice of appeal Annexture A3 and Consent Agreement A4.
The Applicant’s costs in the suit were taxed on 17.11.14- Annexture A5 and a Certificate of Order against Government was issued and served on the Respondents on 26.11.14- Annexture 6.
See also demand letters – Annexture A7 of 26.11.14, A8 of 12.11.17 and A9 dated 23.02.17.
The Respondents have defied the order of court to compensate the Applicant. And the Applicant has complied with all the requirements to be granted an order of mandamus against the Respondent.
The case of Intex Construction Ltd. vs. Attorney General and Permanent Secretary of Finance MA 737/13 was relied upon for the holding that the application has to show that ‘the Applicant enjoyed a right specified by decree; certificate of order against Government was extracted and served on the Respondent. The Respondent refused to honor the certificate of order by refusing to pay the decreed amounts in the certificate of order”.
Referring to the affidavit in reply of the Respondents, Counsel stated that there is no explanation herein as to why the court order to compensate the Applicant has been defied since 2014.
That while the Respondents claim that they are committed to settle the decretal sum, the commitment does not exist at all, and the Applicant has been in the cold for the last 30 years. Even the court order issued to compensate the Applicant has been defied by the Respondents.
It is therefore in the interests of justice, Counsel concluded, that court issues the order of mandamus against the Respondents.
Costs of the application should also be provided for.
Counsel for the Respondents opposed the application relying on the affidavit in reply of Clare Rukunda. However, he raised some points of law.
He contended that, the Government Proceedings Act, together with the rules state that in case of an execution against Government, an order can issue against the Second Respondent enjoining him to pay the decretal sum issued by court.
The Government Proceedings Act and the rules predate the Constitution and must be read in conformity with the Constitution.
Therefore that the Second Respondent is an incorporate, that can neither sue or be sued.
Article 250 of the Constitution provides that “all civil proceedings against Government shall be instituted against the First Respondent”. The application before court is against both the First and Second Respondents, which falls out of the preview of Article 250 of the Constitution.
The question as to whether an incorporate entity can be sued was considered by the Supreme Court in the case of Gordon Sentiba & Others vs. Inspector General Government (IGG) and Others SCCA 06.2008 where the Justices of the Supreme Court held unanimously that “it is not the mandate of court to confer corporate status on parties. It is conferred by law”.
Article 250 of the Constitution, Counsel added, dispenses with the requirement to sue the Second Respondent who is an incorporate entity- The case of Apelli Peter & Others vs. Permanent Secretary Ministry of Lands and Housing Urban Planning MA 78/2009 by Justice Musoke Kibuuka was cited in support.
It was the further contention of Counsel that, the Second Respondent is not amenable to such a procedure and he should be struck off with costs.
Secondly that, it is indicated in the affidavit in reply that there is a clear intention to pay the decrectal sum in this case. The payments are premised on an appropriation by Parliament which has not yet been done. The Respondents can only pay what has been appropriated by Parliament, Counsel argued.
And that it is not true that the Respondents have refused to pay the money as stated. Delay does not amount to refusal.
With commitment on part of Government to pay the money, this is not a proper case for grant of the order of mandamus, Counsel asserted; contending that court should be pleased to dismiss the application with costs.
In rejoinder, Counsel for the Applicant submitted that S.19 of the Government Proceedings Act specifies that it is the duty of the Second Respondent to settle Government debts.
The Applicant is before court to enforce the Second Respondent’s statutory duty to settle the Certificate of Order against Government; which has been on his desk since 2014 up to date.
Counsel asserted that Article 250 of the Constitution does not prohibit proceedings for enforcement of a statutory duty that is specifically cast on the Second Respondent.
In that regard, proceedings for mandamus have variously been brought against the Second Respondent for that purpose.
For purposes of Judicial Review he added, the Respondents need not be incorporated for an application for Judicial Review to lie. - The case of Jet Twmwebaze vs. Makerere University Council C. Appl. 78/2005 by Justice Remmy Kasule was relied upon.
It was also contended that the authority of Gordon Sentiba vs. IGG (Supra) is distinguishable and is therefore not applicable to the matter before court.
Earlier prayers were reiterated.
In rejoinder to the preliminary objection, Counsel for the Respondent stated that the authority of Jet Tumwebaze (Supra) does not support the proposition to sue an incorporate entity. That the Respondent in that case was an entity with capacity to sue and be sued.
Article 250 of the Constitution leaves no room to sue any other entity other than the Attorney General as it provides that all civil proceedings against Government be brought against the Attorney General.
Even when compelling an Officer of Government to perform a statutory duty, as is the case here.
And that the case of Peter Apell (Supra) will further show court that Judicial Review is not amenable to incorporate entities.
The objection and prayers were reiterated.
The following are the issues for determination:-
- Whether the Second Respondent is a proper party to the application.
- Whether the application should be allowed.
The issues will be dealt with in the same order.
- Whether Second Respondent is a proper party to the application.
Having heard the submissions of both Counsel in this regard, looking at the provisions of law cited and the cases relied upon, and giving all the best consideration I can in the circumstances, I find that I am more persuaded by the submissions of Counsel for the Applicant.
The issue for court to determine at this stage is not whether or not the Second Respondent is capable of being sued or of suing. The issue is whether or not, as a holder of a public office the Second Respondent can be subjected to prerogative orders issued by court.
Decided cases determined after the coming into force of the 1995 Constitution have empathically answered the question in the affirmative and I have not found any justified reason to defer from their holding.
It has been further established by the courts that prerogative orders like mandamus do not only issue against bodies that have corporate personality to sue or be sued.
For those reasons, this court finds that the Second Respondent is a proper party to this application.
I am fortified in my finding by the case of Jet Tumwebaze (Supra) which contrary to the submissions of Counsel for the Respondent, I find applicable to the circumstances of the present case.
Satisfaction of orders against Government can only be effected against a Government or against an Officer of the Government which the Second Respondent is. To hold that prerogative orders cannot issue against such an officer would leave a party with such order to enforce without a viable remedy and that could not have been the intention of the Constitution.
Legislation is made to help put into effect the provisions of the Constitution. And if it had been intention of the framers of the Constitution that prerogative orders cannot be enforced against an Officer of Government then the Government Proceedings Act would have been amended to effect that intention.
The objections of Counsel for the Respondents are overruled for all those reasons.
Whether the application should be allowed.
Under S.37 (1) of the Judicature Act, the High Court has discretion to grant an order of mandamus in all cases in which it appears to the High Court to be just and convenient to do so. The order may be made unconditionally or on such terms and conditions as the court thinks fit. – S. 37 (2) Judicature Act.
The Applicant must establish the following circumstances in order to obtain a writ of mandamus.
- A clear legal right and a corresponding duty in the Respondent.
- That some specific act or thing that the law requires that particular officer to do has been omitted to be done.
- Lack of any alternative remedy.
- Whether the alternative remedy exists but is inconvenient, less beneficial or less effective or totally ineffective.
It must be borne in mind that “the duty to perform an act must be undisputable and plainly defined, as mandamus will not issue to enforce doubtable rights or those rights that are the subject of dispute”. – Refer to An Application for Judicial Review by Afro Motors Ltd & Another vs. Ministry of Finance, Planning and Economic Development & Another and Nampogo Robert & Another vs. Attorney General HCCMA 0048/2009.
As already pointed out earlier in this ruling, the Applicant in the present case obtained judgment against the First Respondent in C.S 675/2012 on 21.12.12 where various orders were made, which included payment of various sums of money to the Applicant at the rate of interest of 17% per annum. Costs of the suit were also awarded to the Applicant.
The rate of interest was reduced to 10% on agreement of the parties and the appeal that had been filed by the First Respondent in that respect was withdrawn.
After the Applicant’s costs of the suit were taxed and interest on costs agreed to by the parties at 6% per annum. A Certificate of Order against Government was issued on 25.11.14 and served on the Respondents on 26.11.14.
Surprisingly, the certificate of order against Government remains unsettled to date, despite several written demands by the Applicant to the Respondents.
It is not disputed that the Second Respondent is the Officer of Government with the statutory responsibility of settling Uganda Government debts.
“A decree or order of payment made against Government becomes a statutory duty for the Government Officer concerned to perform the duty. And all payments decreed against Government have to be made by the Attorney General through the Treasury Officer of Accounts”.
The Applicant has accordingly established that there is a clear legal right granted to it by the court and a corresponding duty in the Respondents to pay the sums decreed against them by the court.
That the sums of money decreed to the Applicant have not been paid to date is confirmation that the duty the law requires the Second Respondent to perform has been omitted to be done.
The Applicant has no other legal remedy to enforce that right under the Certificate of Order against Government. The Respondents claim that they are willing and are committed to paying the decretal sums without any positive step being taken to do so amounts to infringement of the Applicant’s right to enjoy the fruits of its judgment and to contempt of court orders.
This court finds for those reasons that the Applicant has proved the circumstances necessary to obtain the writ of mandamus.
The application is therefore allowed under S.37 (1) of the Judicature Act. The writ of mandamus to issue to compel the Respondents to pay the Applicant the sums decreed in C.S. 675/2012 together with interest that has accrued since then at the agreed rate of 10% per annum from the date of judgment until payment in full.
Together with the taxed costs of the said suit with interest at 6% per annum from 14.11.14 till payment in full.
The taxed costs of this application are also granted to the Applicant who have continued to suffer untold inconvenience due to the Respondents continued refusal to pay the decreed amounts.
FLAVIA SENOGA ANGLIN