Court name
Supreme Court of Uganda
Judgment date
21 August 2003

Inspector General of Government v Kikonda Butema Farm (Miscellaneous Civil Application-2003/11) [2003] UGSC 28 (21 August 2003);

Cite this case
[2003] UGSC 28

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

MISCELLANEOUS CIVIL APPLICATION NO. 11 OF
2003


BETWEEN

THE INSPECTOR GENERAL OF GOVERNMENT
:::::::::::: APPLICANT

VERSUS

KIKONDA BUTEMA
FARM:::::::::::::::::::::::::::::::::::::::::::RESPONDENT


RULING
OF KAROKOA JSC.

This is an application by Notice of Motion filed under Rules 4, 5(2) and 71
of the Rules of this court. It is seeking extension of
time within which to file
its Notice of Appeal against the ruling of the Justices of Appeal in Civil
Appeal No.35 of 2002 in which
it was ordered that the application for leave for
orders of certiorari be remitted to the High Court for hearing denovo by
another Judge and that the proceeding in the High Court be stayed. The
application is supported by affidavit sworn by Ms Elizabeth
Musoke, the Director
of Legal Affairs at the Inspectorate of Government.

The grounds for the application which appear in the affidavit sworn in
support of the application are:

(1) That the applicant, who was
the respondent in the above matter, which proceeded exparte was not served with
a copy of the Notice of
Delivery of
judgment.
(2) That the applicant only learnt
about the ruling/order in the said Civil Appeal when the respondent was
presenting the application
for leave to apply for orders of certiorari and
prohibition on 8th July, 2003 consequent upon the order of the Court
of Appeal.
(3) That because the applicant was
not aware of the said ruling of the Court of Appeal, the applicant could not
file a Notice of Appeal
within the prescribed
time.
(4) That the ruling of the Court of
Appeal raises very important points of law which this court should pronounce
itself on it. That is
that the Court of Appeal was not vested with jurisdiction
to handle a matter on appeal relating to prerogative order of certiorari
and
prohibition, and that because it handled the matter without jurisdiction in
contravention of section 38(3) we seek the ruling
of" this court on the
matter.


It was deponed that the applicant's
intended appeal has likelihood of success and therefore prayed that they be
given a chance to
give notice of appeal out of time.

Mr. Mulira, counsel
for respondent, opposed the application on the ground that the applicant had no
locus in the matter. He submitted
that the judgment in the Court of Appeal arose
out of the High Court Miscellaneous Application No. 13 of 2001 which had been
brought
under Section 3(2) of the Law Reform/Miscellaneous Provisions Act No 74
of 1996 which provides that applications for certiorari,
mandamus and
prohibition cannot be made without leave of the court. He submitted that
sub-section 2 of section 3 of the Act provides
as follows:

"An application for such leaves as aforesaid shall be made exparte to a
judge in chambers, and shall be accompanied by a statement
setting out the name
and description of the applicant, the relief sought and the ground on which it
is sought and by affidavits verifying
the facts relied on. The judge may, in
granting leave impose such terms as to costs as to giving security as he thanks
gifts."



Counsel submitted that in view of the above
provisions of the Act, the applicant has no right to bring this application
since the
leave sought for certiorari has not yet been granted.

Secondly, counsel submitted that section 38(3) of the Judicature Statute
deals with prerogative orders of mandamus, prohibition and
certiorari. He
contended that at this stage there was no order made for any of the prerogative
orders. Therefore, subsection 3 of
section 38 of Judicature Statute was not
applicable. He further contended that even if assuming subsection 3 of section
38 of the
Judicature Statute applied, it does not say that there is no right of
appeal. All that it says is that an order in respect of any
of the prerogative
orders made by the High Court shall be final subject to any right of appeal. He
concluded that there was no law
quoted which stated that there is no right of
appeal.

Thirdly, he submitted that section 3 of the Law Reform (Miscellaneous
Provisions) Act, 74 makes it clear that there is distinction
between application
for leave to apply for order of prohibition, certiorari and mandamus from the
substantive order of mandamus certiorari
and prohibition, because there can be
no application for these prerogative orders unless leave thereof has been
granted in accordance
with this rule. He contended that at this stage we are not
talking about these prerogative orders. We are dealing with leave for
these
orders.


Fourthly, counsel submitted that this application was
misconceived, because the issues raised could be raised in the High Court when
the substantive application for the order of certiorari is being heard. The
applicant will have right of audience.

On the complaint that the applicant was not served with a notice of delivery
of judgment, counsel submitted that there was no requirement
in law to give him
notice of delivery of judgment, since the applicant had not taken part in the
High Court proceeding from which
these proceedings originated, they (applicant)
had no locus to appear before the Court of Appeal in the same matter which had
commenced
exparte.


After the Court of Appeal had heard arguments from
counsel for respondent it directed that the matter be referred back to the High
Court to hear the application for orders of certiorari. The matter was placed
before Opio Aweri J. who proceeded exparte and granted
application on 11/7/2003,
which is due to be heard interparte. Counsel submitted that in the interest of
justice, the application
for order of certiorari in the High Court should
proceed uninterrupted as it touches on matter of national interest of whether an
opinion of the Attorney General on legal matters can be countermanded by the
Inspector General of Government.

Mr. Karekyezi, in reply started with the last point/issued of whether the
Attorney General's legal advice on legal matters can be
countermanded by the
IGG, and submitted that this issue can be handled in other manner but not
necessarily in the certiorari application.
He submitted that if the application
for certiorari is stayed, the matter would be handled by the High Court in a
suit which was
recommended by the report and the issue of national interest
would be resolved. Counsel submitted that although the IGG had no locus
to
appear before the High Court, their attendance having been dispensed with, it
was their contention that they should have a right
to appeal as parties who are
directly affected by the decision of the High Court and the Court of Appeal. On
the orders given by
the Court of Appeal remitting the matter to High Court,
counsel submitted that those orders were given by the Court of Appeal without
jurisdiction and that's why they are seeking that proceedings for certiorari be
stayed. He cited section 38(3) of the Judicature
Statute, 1996, for proposition
that there is no right of Appeal against prerogative orders. He cited the case
of Attorney General V State (1971) EA 50 in support of the
above argument.


On the question of whether the applicants were
entitled to service of Notice of delivery of judgment in Civil appeal No 35 of
2003,
I think that since the

proceeding were commenced exparte in the High Court under section 3(2) of the
Law Reform (Miscellaneous provisions) Act, 1974, seeking
leave for an order of
certiorari, which leave has not yet been granted, and since even the proceedings
before the Court of Appeal
proceeded exparte under Rule 77(1) of the Court of
Appeal Rules, the applicant was not entitled to get notice of the delivery of
judgment. In my view, as long as no order of certiorari had been granted, the
proceedings remained exparte. Therefore the judgment
springing from such exparte
proceeding would not affect applicant's interest/rights. In the result,
subsection 3 of section 38 of
the Judicature Statute is irrelevant to the
proceedings at this stage.


Therefore, the decision in the case of
Attorney General V Shah (1971) EA 50
would not be relevant at
this stage of the proceedings before leave for the prerogative order of
certiorari was granted, because that
case is an authority for the proposition
that no right of appeal exists against any of the prerogative orders. In the
result, the
case of Attorney General V State (supra)
is distinguishable, because there, the Attorney General was seeking to
appeal against the prerogative order, unlike in the instant
case, where the
respondent had appealed against refusal by the High Court to allow exparte
application for leave to apply for certiorari.
In the circumstances, ground two
must fail.


In my view, since the original application for leave to
apply for certiorari had proceeded exparte and the Court of Appeal had dispensed
with applicant's attendance at the hearing of the appeal in accordance with Rule
77(1) of the Court of Appeal Rules, the applicant
was not entitled to be served
with notice of delivery of judgment.

In the interest of justice, since leave to apply for order of certiorari has
been granted by the High Court, let the applicant be
served with hearing notice
so that all legal issues are argued and determined. In the meantime, 1 see no
merit in this application
which is dismissed with costs.

Dated at Mengo, this 21st day of August
2003.

A.N. KAROKORA

JUSTICE OF THE SUPREME COURT