Attorney General v Yustus Tinkasimiire and Others (Criminal Appeal No. 208 of 2013) [2018] UGCA 253 (21 May 2018)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### **CIVIL APPEAL NO. 208 OF 2013**

ATTORNEY GENERAL ....................................

## **VERSUS**

1. YUSTUS TINKASIMIIRE

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- 2. NYABONGO R. STEPHEN - 3. BIKANGAGA SAM - 4. MATSIKO YORAMU - 5. KANIHURA IVAN - 6. NAMANYA ZADOCK 15 - 7. MULISA BERNERD - 8. TURYAMUREEBA CHARLES - 9. TURYAMUREEBA MOSES - TIBORUHANGA MICHAEL $10.$ - **KWESIGA MOSES** $11.$ - BITANAKO ADRIAN 12. - KAMUHANDA JOHN 13. - **BITARE MOSES** $14.$ - KAMUGISHA PATRICK 15. - KAMANZI BENON IVAN TUMUHIMBISE 16. - **IVAN TUMUHIMBISE** 17. - KAGARUKAHO GEOFFREY 18. - ELISHA BYARUGABA & OTHERS.................................... 19. - CORAM: Hon. Mr. Justice Kenneth Kakuru, JA 30

Hon. Mr. Justice F. M. S Egonda-Ntende, JA

Hon. Mr. Justice Cheborion Barishaki, JA

#### **IUDGMENT OF THE COURT**

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This appeal arises from the Judgment of the High Court in High Court $5.$ Miscellaneous Cause No.35 of 2012 dated 5th April 2013 before Mwangusya J, (as he then was).

# **Background**

occupying.

The respondents were applicants at the High Court by way of notice of motion, 10 brought under *Sections 33, 36* and *38* of the Judicature Act (CAP 13) and the Judicature (Judicial Review) Rules. They sought Judicial review reliefs of certiorari and prohibition calling for and quashing the decision of Dr. Malinga a government Minister at the time made on 6th March 2012 ordering the appellants to vacate or forcefully be removed from the land they were 15

The grounds of the application are set out in the motion as follows:-

- a) The Applicants and thousands other residents and inhabitants of an area commonly known as Rwamwanja in Nkoma Sub county, Kibale county Kamwenge District are threatened with eviction by the Respondents vide a press statement issued on $6/3/2012$ by the 2nd Respondent. - b) The Applicants have lived on the land for a long period of time *uninterrupted having acquired the land lawfully.* - c) The Respondents forcefully surveyed their land falsely alleging that it was a refuge settlement camp which allegation is denied by the Applicants. The Applicants were never involved though they were *affected.* - d) The Applicants have homes and developments on the land cannot be arbitrarily and hurriedly displaced. They contend that it is illegal and a *violation of their human rights to own property.*

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area outside the former refugee camp and affecting the applicants apiw χην ρουθνος χοντιμένη το του 2002 πί μπρί μίρε οποίθενται από το μογράτι το μογράτι το μογράτι το μογράτι $0t$ $\iota$ $\mathcal{L}$ *Yo uoidation in the formal in violation of a court order,* $\mathcal{L}$ since obtained certificates of title. .) Μαυλ beoble μανε σαντίμηλ αςdniκεq jauq ui τμε ακεα αυα μανε σλεν SE ρλ της Κίπαρα's sααzα chief for Kibaale County. who applied to it vide a Kingdom land allocation committee chaired $\mathcal{L}$ ) Jord and $\mathcal{L}$ denote $\mathcal{L}$ denote a specific topology of the constant $\mathcal{L}$ of the constant $\mathcal{L}$ is a specific topology of the constant $\mathcal{L}$ is a specific topology of the constant $\mathcal{L}$ is $\mathcal{L}$ The refugees later left the area in 1994 leaving the natives in peace. $\overline{0}$ ατεα ωλο λανε stayed there ever since. $\partial \eta$ ui sənipn ə tl bəliləsun və bəshları dinən ənən qmpə əsqu $\partial \eta$ *publication in the Uganda Gazette.* $SZ$ $\Lambda$ д рәгішізівәі ләзрі spм рир орирм $\gamma$ рир шорвиі $\gamma$ олоо $\Gamma$ $\int$ o sbuiy əyi uəəmiəq buipubisiəpun ub $\Lambda$ q $\Lambda$ iiuəibddb bəin pəindsip eht fo noitroq linms n ni bəttləs ərəw nhama mərli səəguləh (ə $0z$ OE61 ni bənssi ακενηθασουιλ *γιεί μαι οδυ δυο μοιγρίηστε παι γιεί μαι τι τι τι τι τι τι τι τι τι τι τι τι τι* up won si hoidw abang $\theta$ fo horizonal constants hold to horizonal consumption $\lambda$ and $\lambda$ horizontal constants in the probability of the probability of the probability of the probability of the probability of the prob $\gamma$ $\Gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ зләимо ѕпоиәвіриі $\mathsf{S}\mathsf{T}$ $u$ $\partial$ $\partial$ $\partial$ $\partial$ $\partial$ $\partial$ $\partial$ $\partial$ Тоого Кіпддот. $\partial$ $\partial$ $\partial$ $\partial$ $\partial$ $\partial$ $\partial$ $\partial$ OT title from their grand fathers who have lived there for ages. $\beta$ $\mu$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ statement is not correct in that;- $\lambda$ $\mu$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ $\lambda$ $\varsigma$

and other affected residents.

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- k) The Applicants raised the matter with the various offices including $5$ Prime Minister, the Vice President and later the President who *advised in 2009 to halt the process.* $\mathcal{L}$ *The Respondents did unilaterally and arbitrarily and without notice,* forcefully enter the land and ordered the Applicants to vacate the area 10 and gave the Applicants an ultimatum of 27/3/2012. m) The Applicants are aggrieved by the said decision and challenge it as *illegal because;* 15 a. It ignores the Applicants legal proprietary and constitutional *rights to their land. b. It covers an area far wider than the former refugee camp.* c. It lamps up all the occupants on the land as encroachers and squatters despite the fact that some have lived there for ages and 20 others even have certificates of title. d. It is very illegal, arbitrary and intended to displace the applicants and render them destitute. The application is supported by the affidavits of Mastsiko Yoramu, Kanihura - 25 Ivan, Bikangaga Sam. We have not found it necessary to reproduce them here, suffice it to state that they expound on the grounds of the motion which we have already set out above. - Dr. Stephen Malinga the second respondent filed an affidavit in reply. The 30 pertinent parts read as follows;- - 1. THAT I am currently the minister in charge of disaster preparedness, relief and refugees, in the government of Uganda, conversant with the subject land in issue and duly competent to *depone this affidavit in that regard.* - 4. THAT the application for judicial review is incompetently commenced against me in my personal capacity, yet the applicant's allegations against me relate to acts or omissions allegedly committed in my official capacity as a minister in charge of - Disaster Preparedness, Relief and Refugees, in the government of Uganda, whereof my said lawyers shall apply to have me struck off the suit.

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$Page | 5$ process that is ongoing. $\mathfrak{g}$ 'pupj zius əht lo dihsrənmo rəvo əzuqsib əht gnivlosər yünalı lo syam General have had a preliminary meeting with the applicants to map out I TAHT I am aware that the offices of the Prime Minister and the Attorney $0t$ valid claims over the land. απίεαδιε settlement, with any occupants, who shall be proved to have $\alpha$ up $\gamma$ $\beta$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $\gamma$ $SE$ $\mathcal{L}$ TAHT. I am aware that there are arrangements by the government to $\mathcal{A}$ the gazette notice is attached hereto marked $\mathcal{A}$ . that was designated as a refugee settlement as far back as 1964. A copy publ banwo τηθηπορίες της μεταίρι με μεταίρει το μπρί μεταίρε το μπρί μεταίρε το μπρί μεταίρε το μπρί μεταίρε $0\xi$ $\mathcal{L}$ TAHT according to the records at the ministry of Disaster Preparedass, Democratic Republic of Congo. $\partial y$ world sould be find a settle the relative the region that the following the sould be a set of the relative to the set of the relative to the relative to the relative to the relative to the relative to the relative t illegal occupants on the land to peacefully vacate the regularies settlement $\label{thm:subspace} The graph is a single graph is the graph is the graph. The graph is the graph is the graph is the graph.$ $SZ$ TAHT the press statement issues by the Ministry of Disaster $\cdot 8$ party to the suit. Jon sho olw establidadin o stabliser fo sbapsuodi begents, who are not $0z$ no noitozida sha locus whatsoever to present and prosecute the application on 7. TAHT I have been advised by my said legal counsel that the applicants ρλ way of an application for judicial review. $\mathfrak{g}$ the abblicants and the government of Uganda, which cannot be resolved $u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \rightarrow u \$ $\mathsf{S}\mathsf{T}$ shject matter before this honorable court as ascertained from the 6. TAAT I have been advised by the legal counsel that the crux of the упручения: $\overline{0}$ $\mathfrak{g}$ for actions of government officials implementing a government $λ$ || $\alpha$ γ0 γ0 γ0 γ0 γ0 γ0 γ0 γ0 $\mathcal{M}$ ere settled by the government in compliance with its international $\mathcal{L}$ иоәләүз sәәбп $\mathcal{L}$ әүз рир ррир $\mathcal{L}$ р зиәшиләлоб әүз $\mathcal{L}$ р әүзі $\mathcal{L}$ рир ррир $\mathcal{L}$ р зә 5. TAAT without prejudice though, the refugee settlement at Rwamwanja S

14. THAT I am further aware that the office of the Prime Minister sanctioned a meeting of the parties and their respective lawyers at Rwamwanja in an attempt to work out a temporary and agreeable arrangement for the *aovernment and the applicants, though I am advised that no conclusion* has so far been reached."

There is also a supplementary affidavit deponed to one Bafaki Charles the relevant parts state as follows:-

- "1. THAT I am currently employed as Senior Settlement Officer in the ministry of Disaster Preparedness, Relief and Refugees, in the government of Uganda, well acquainted and duly conversant with the facts pertaining to the suit land and duly competent to depone this affidavit in that regard. - 3. THAT I have over-time had the opportunity of reading through a number of correspondences available at the Ministry of Disaster Preparedness, Relief and Refugees on the history of the suit land at Rwamwanja Refugee *settlement and he various activities that have taken place at the settlement.* - 4. THAT I have been to Rwamwanja on several occasions in execution of government work in resettlement of refugees and I am conversant with the relevant facts pertaining to the dispute before court and thus in position to *depone this affidavit.* - 5. THAT according to the records available at the ministry of Disaster *Preparedness, Relief and Refugees, Rwamwanja is land formerly constituted* as crown land during the colonial government, which reverted to the Government of Uganda in 1964, then estimated to be 54 square miles in *measurements.* - 6. THAT the records further indicate that the said land at Rwamwanja was vacant with no occupants or squatters and was in 1964 Gazetted as a Refugee Settlement and has since then been maintained as such. A copy of the Gazette Notice is attached hereto marked "A". - 7. THAT further information from the records at the ministry indicates that the land at Rwamwanja having been gazetted as a Refugee Settlement was used

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when most of them returned to Rwanda leaving the land vacant. $\frac{1}{2}$ 661- $\frac{1}{2}$ 661 the settle Rwandese from 1964, till about 1995, $\frac{1}{2}$ 64.1995, $\frac{1}{2}$

$B_n$ βεριπατική μεριπαιλή το μεριπατική μετατική μετεριπατική μεριπατική μεριπατική μετεριπατική μετεριπατική μετεριπατική μετεριπατική μετεριπατική μετεριπατική μετεριπατική μετεριπατική μετεριπατική μετεριπατική μετερι that the settlement was part of government owned land. A copy of the said $\alpha$ canse a survey of all the settlements at Rwamwanja, further confirmation Permanent secretary/ director of reguges to streamline the boundaries and $\mathcal{P}$ TAHT the records further indicate that in $1979$ , there was a proposal by the

ל.'), לאפ און אפרפל צמוֹם לפללפל צמוֹם ל $\mathfrak{S}^{th}$ און מללמכליס אפרפלס מות $\mathfrak{S}^{th}$ לק $\mathfrak{S}^{th}$ $\mathcal{A}$ τομπρει της τομυρί $\mathcal{A}$ το λαιοποιλοβ ειτρωθή δι το χρισμέν $\mathcal{A}$ το λαιοποιλογικού $\mathcal{A}$ το λαιοποιλογικού $\mathcal{A}$ το λαιοποιλογικού $\mathcal{A}$ το λαιοποιλογικού $\mathcal{A}$ το λαιοποιλογικού $\mathcal{A}$ το shi the refugee settlements are established are never leased out to the uo spub για τρας τρας τρας τρας αποτρουσίε αυτοίσης της επαίτηση από τρας τρας τρας τρας τρας τρας τρας τρας ομω ' $\partial$ ριρι να λεγινιμι μετρι της της της της της της της της της της source the the the same an 1982 when in an endeavour to avert the disputes TAHT according to the records, the government position on Rwamwanja $\cdot$ 6

$D$ ς μετερ μαικες αυμεχτητε " $D$ " land demarcated for refugee activities. A copy of the said letter is attached letter to the Department of Refugees confirming Rwamanja as government 10. TAHT the records also indicate that in 1986, the Ministry of Lands wrote a

said loose minute dated 4-8-1994 is attached hereto marked annexture "E". the land to landless citizens was subject to cabinet approval. A copy of the $\mathcal{M}$ as uoisisəp $\mathcal{M}$ up pup əsn əəbnfəx for $\mathcal{M}$ inistry for up qub qub qub qub qub qub qub qub qub qub was determined in the sense that land in refugee settlements in this country noissoup doid to the panal area to use as farm land, to show the panal source the panal source of the panal source of the panal source of the panal source of the panal source of the panal source of the panal source of the the NRC then) as to whether Government could consider giving part of the ni noitsəup lo sotioN) lo vaw ya bəsinn zaw noitsəup a folotice of the stion in

said letter dated 30th May 1986 is attached hereto marked annexture " $\mathbf{F}$ ". $\mathcal{F}$ of the settlement. A copy of the solution of the settlement. A copy of the $\mathcal{S}$ abh $\mathcal{S}$ ay the udtiouals, it was recommended that the response $\mathcal{S}$ uo padaries of Rwamwanja Settlement and encroached on I2. TAHT the records indicate that amidst some complaints that the regularization should the result of the result.

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constituting the settlement was $42$ sq. miles. εοιταί μετρί γετρίσωσις συς πους 'αυς πους 'αυς τος τος τος τος τος τος τος τος τος το $\mathcal{A}$ TAHT a follow as $\mathcal{A}$ of $\mathcal{A}$ is a compress to demarcate the boundaries of

- ίς αττας μείδα μείδα αυτικό παι αυτικό "G". $\mathcal{E}$ consistance Councils. A copy of the said letter dated $20^{th}$ June 1988 $\delta$ identified at this stage and the matter was drawn to the attention of the Alloups sow stangulodo of illegal of illegal occupants was equally. - claimed by the applicants. $\mathcal{L}$ wou are find parceling it into indicates, some plots, some polotic are now βυίλοπολοπό είπρισι τη αναίτρα ας α κεσιίς, πατίοπαίς εταντέα εποτοική από με 15. TAHT upon the departure of the Rwandese rejugaes in 1995, the land at - ίε αττας λειτό πατκεά απακτικέ "Η". $\mathcal{L}_{\text{H}}$ of the said letter dated $\mathcal{L}_{\text{H}}$ of the said letter dated $\mathcal{L}_{\text{H}}$ in 1995 $\partial$ υμε δυμβριποριο πορί στο μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το μεται το με της sucroachers and demanding that they vacate the land. The RCIII IAHT the records indicate that notices and circulars were issued warning. - $\mathcal{F}_{\mathcal{H}}$ 0) the said letter dated Z5 $\mathcal{G}_{\mathcal{H}}$ ugust 1995 is attached hereto marked. Rwandese refugees as not available for occupation by the nationals. A copy $\mathcal{A}$ $\Lambda$ q pəidnəəo $\Lambda$ |snoi $\Lambda$ ə $\lambda$ d st $\lambda$ əb $\Omega$ $\beta$ ə $\lambda$ uo uoi $\lambda$ isod tuəmu $\lambda$ ə $\lambda$ o $\delta$ $\mathcal{L}$ solutionals! the $\mathcal{L}$ ermanent Secretary /Director of Refugees re-confirmed Ahi ya bingmawa to noitaquoso lagali to sussi shi os sanoqser ni TAHT. TI - שמגאַ*פּ*ק יי}״. occupation. A copy of the letter dated $8^{th}$ June 1996 is attached hereto $\mathfrak{g}$ illegal encroachment on the land, despite prior notification of the illegal 18. TAHT in 1996, the records indicate that the nationals continued with their - $K_{\mu}$ is attached hereto marked " $K_{\mu}$ ." applicants must have been illegally procured. A copy of the certificate of title $\Delta$ $\partial$ $\mathfrak{g}$ fo uoiss $\partial$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\mathfrak{g}$ $\math$ $συμτιλοβ$ τι τυθωμιθοβ είτρος μι ρθης το τρομείος μαραία το τρομείος με της το τρομείος με το τρομείος με το τρομείος με το τρομείος με τρομείος με τρομείος με τρομείος με τρομείος με τρομείος με τρομείος με τρομείος με Jo sesoding Tol babl shi yever decided to survey the land for published for several total several total several total several total several total several total several total several total several total several total severa

Jand from Tooro Kingdom are false, as the suit land is not kingdom land. $\mathfrak{g}$ allocated the land to the applicants and their claims of acquisition of the suit $\lambda$ 02 TAHT $\lambda$ 05 spd noissimmo $\lambda$ banda $\lambda$ anda $\lambda$ 05 $\lambda$ 04 $\lambda$ 06 $\lambda$ 07 $\lambda$ 07 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08 $\lambda$ 08

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$0E$ - ZI. THAT in 2072, there wqs an influx of Congolese refugees into Uganda, whereof government duly notified the applicants to vacate the suit land, illegally occupied by them and indeed quite a number vacated including Hon. Butime, Mr. Kajumbi, Mr. Chemasweti, Mr. Tugume Mr. Mugume and others. - 22. THAT the refugees have been settled only on land, owned by the governmenl parts whereof are encroached on by the applicants, who forcefully entered onto the land, without any colour of right, taking advantage of the departure of the refugees, - 15

- 23. THAT the records do not indicate that the land hqs ever reverted to or been allocated to the Tooro Kingdom, thereby rendering the applicant's allegations that the land was allocated to them by the Kingdom false." - The application heard and granted at the High Court, against the Attorney General. The claim against the 2nd respondent Dr. Malinga was dismissed. The issue of locus standi was determined in favour of the application. 20

The Attorney General being dissatisfied with the decision of the Court filed this appeal on the following grounds;-

- "!. The learned triql Judge erred in law and fact when he found that the prerogative order of prohibition could issue yet there were no circumstances meriting its issuance. - 2. The learned trial Judge erred in law and fact when he ignored and failed to apply the provisions of 5.36(5) of the Judicature Act. - 3. The learned trial Judge erred in law and fact when he held that locus standi of the Respondents was immaterial in the circumstances of the cqse.

4. The learned trial Judge failed to properly evaluqte the evidence on record and erred in allowing the Respondent's Application: Misc. Cause No. 35 of 2012."

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## 5 Renresentations

When this appeal was called for hearing Principle State Attorney Mr. Philip Mwaka appeared for the appellant while learned Counsel Mr. Arthur Murangfra appeared for the respondents.

#### - The appellant's case

Mr. Mwaka argued only ground one having abandoned the rest. 10

In respect of ground one Counsel faulted the learned trial f udge for having issued an order of prohibition in addition to other orders that had been sought. He submitted that, the prohibition order against the appellant and in favour of the respondents effectively determined the question of ownership of the disputed land as it permitted the respondents to remain in occupation of the said land without the

dispute between the parties having been determined. 15

Further that, the order of prohibition completely constrains the appellant from managing any further encroachment on the disputed land allowing more people to illegally settle there.

Counsel asked Court to set aside the order of prohibition arguing that, its setting aside would enable government to approach the matter afresh without prejudice to the rights of the respondents. 20

# The Respondent's reply

Mr. Murangira opposed the appeal and supported the |udgment of the trial Court.

He submitted that fudicial review is not concerned with the adjudication of the rights of parties but rather with the decision making process. 25

Counsel submitted that the trial Court was justified when it issued an order of prohibition against the appellant. He contended that, the eviction of the respondents by the appellant had continued even after Court had issued an interim order staying

the implementation of the Minister's order. Further that, had the order of prohibition not been issued, the appellant would have proceeded to unlawfully evict the respondents from the disputed land. 30

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5 Counsel further argued that the decision of the lower Court only prohibits the implementation of the order of the Minister and does not constraint the appellant in any other way.

### Consideration by the Court

We have carefully listened to both parties, read the pleadings and studied the relevant law. L0

We have a duty as the first appellate Court to re-appraise the evidence adduced at the trial Court and to come up with our own inferences on all issues of law and fact. . See; Rule 30 (1) of the Rules of this Court and Fr. Narcensio Begumisa & others vs Eric Tibebaaga (supreme Court Civil Appeal No. 17 of 2002.

15 We shall proceed to do so.

The only issue for us to determine is, whether or not the learned trial |udge erred in law and fact when he issued an order of prohibition against the appellant and in favour of the respondents in the fudicial review proceedings before him.

20 It was submitted for the respondent that the learned trial fudge acted beyond his jurisdiction in |udicial review proceedings when he issued against the appellant an order of prohibition in favour of the respondents and others who were not parties to the proceedings, which order effectively determined the dispute between the parties.

25 For the respondent it was submitted that the issuance of the order of prohibition was legal and justified taking into account the circumstances of the case, especially the fact that appellant had acted unreasonably and in a higher handed manner.

Further that the order of prohibition was necessary because during the trial the Court had issued an interim order of prohibition which had not been complied with by the respondent. The issuance of the substantive order of prohibition, Counsel

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s submitted, did not have the effect of determining the land dispute between the parties in favour of the respondents to the prejudice of the appellant.

We have already set out the facts giving raise to this appeal as presented to the trial fudge earlier in this fudgment. We find no reason to reproduce them here.

10 The learned trial fudge correctly set out the law regarding judicial review when at page B of his Ruling he stated as follows:-

> "The purpose of Judicial Review is concerned not with the decision but with the decision making process. Essentially judicial review involves an assessment of the manner in which a decision is made it is not an oppeal and the jurisdiction is exercised in a superuisory mqnner, not to vindicate rights as such. but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality. The case of Koluo loseph Andrew & others versus the Attorney General and others Misc Cause No.706 of 2070 is instructive."

20 As rightly observed by the trial fudge, in judicial review proceedings the Court is not required to vindicate anyone's rights but merely to examine the circumstances under which the impugned act is done to determine whether it was fair, rational and or arrived at in accordance with rules of natural justice.

25 In this regard, the Constitution provides as one of the basic fundamental human rights, a right to just and fair treatment in administrative decisions under Article 42 which stipulates as follows:-

# " 42. Right to just and fair treatment in administrative decisions.

Any person appeqring before ony administrative official or body has o right to be treated justly and foirly and shall have a right to apply to a

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court of law in respect of any administrative decision taken against him or her. "

In this case the underlying issue between the parties is a land dispute. The remedy for this dispute can only be obtained by way of an ordinary suit filed by either party. This is what the trial fudge found when at P.9 of his Ruling he stated as follows:-

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"From the pleadings of the parties, there is controversy on proprietorship of the suit land and whether the respondents' action infringed the applicqnts' rights to the ownership of the said land, in such an instance the remedy would lie in an ordinary suit with a fully fledged hearing; where proprietorship of the land would be tried and finally resolved, and not in the prerogative remedies. But this case is not all about the dispute relating to the proprietorship of the land which can only be resolved in ordinary suit rqther than in an application for Judicial Review."

20 Ordinarily the trial fudge ought to have dismissed the application at that point. However, he went on further to find that, the appellant, who is the Attorney General representing the Government of Uganda, instead of instituting a suit against the respondents issued an order of eviction against them through a Ministerial order. While discussing this issue the trial fudge stated as follows at page 11 of his Ruling.

"ln summaty while this Court recognises the obligation of the Government to settle the refugees that flocked in the country from a neighbourtng country the decision to evict the applicqnts from their occupation of the land was unfair to the applicants because they were treated as trespassers to the land without being given an opportunity to explain the circumstances under which they occupied the land. This is the decision that this court was required to call are quash and court is

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5 satisfied that the applicants have estqblished the sufficient grounds for quashing it."

We have found no reason to fault him on this decision. The Government and the respondents all claim to have legal interest over the disputed land. The government, because it has the power and the coercive machinery of the state at its disposal, issued a ministerial order of eviction against its' citizens who have a claim over the same land. We find as did the fudge that such an order was irrational, unfair and offended all the rules of natural justice. This is conceded to by the appellant's Counsel. He is not contesting the order of certiorari quashing the decision of the Minister. 10 15

What the appellant now seeks, is to set aside the order of prohibition issued by the High Court in the |udicial Review proceedings against the appellant. He contends that the order has had the effect of determining the dispute between the parts in favour of the respondents to its prejudice.

The government which also claims to have interest in the disputed land is prohibited by the said order from effectively occupying it while allowing the respondents to do so. The order appears to be open ended since it is couched in permanent terms.

We are unable to agree with Coirnsel for the appellant that the dispute between the parties has been determined permanently by the restraining order. The restraining order issued in these proceedings although couched in permanent terms is not cast in stone. It does not bar the bringing of an ordinary suit to settle the dispute.

In our humble view the appellant ought to have taken a leaf from the |udgment of the trial f udge that, the parties ought to have their dispute determined by way of an ordinary suit in the appropriate Court.

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> We find that, instead of filing this appeal, the appellant should have filed an ordinary suit at the High Court. If we were to allow this appeal and set aside the order of prohibition, there is nothing that would stop the appellant from issuing a fresh order of eviction against the respondents and that would be unjust.

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The appellant should therefore consider the available remedy and file a suit against the respondents for recovery of the land.

Accordingly we find that this appeal is misconceived and lacks merits.

We accordingly dismiss it with costs to the respondents

It is so ordered.

**Dated** at **Kampala** this .................................... $10$

**Hon Justice Kenneth Kakuru**

**JUSTICE OF APPEAL**

Hon. Justice F. M. S Egonda-Ntende **JUSTICE OF APPEAL**

. . . . . . . . . . . . . . . . . . . .

**Hon. Justice Cheborion Barishaki JUSTICE OF APPEAL**

$\mathsf{S}$

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