Departed Asians Property Custodian Board v Jaffer Brothers Ltd (Civil Appeal 9 of 1998) [1999] UGSC 2 (27 May 1999)

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Jessica chemeri}{\operator cguest}{\creatim\yr2008\mo9\dy22\hr12\min14}{\revtim\yr2008\mo9\dy26\hr16\min24}{\version3}{\edmins94}{\nofpages25}{\nofwords6179}{\nofchars35226}{\*\company } {\nofcharsws41323}{\vern24689}}\widowctrl\ftnbj\aenddoc\noxlattoyen\expshrtn\noultrlspc\dntblnsbdb\nospaceforul\hyphcaps0\formshade\horzdoc\dgmargin\dghspace180\dgvspace180\dghorigin1800\dgvorigin1440\dghshow1\dgvshow1 \jexpand\viewkind1\viewscale100\pgbrdrhead\pgbrdrfoot\splytwnine\ftnlytwnine\htmautsp\nolnhtadjtbl\useltbaln\alntblind\lytcalctblwd\lyttblrtgr\lnbrkrule\nobrkwrptbl\snaptogridincell\allowfieldendsel\wrppunct \asianbrkrule\rsidroot13505809\newtblstyruls\nogrowautofit \fet0\sectd \linex0\endnhere\sectlinegrid360\sectdefaultcl\sectrsid16449556\sftnbj {\*\pnseclvl1\pnucrm\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl2\pnucltr\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl3\pndec\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl4\pnlcltr\pnstart1\pnindent720\pnhang {\pntxta )}}{\*\pnseclvl5\pndec\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl6\pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl7\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl8\pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}\pard\plain \s15\qc \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 \fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid13505809\charrsid7346511 THE REPUBLIC OF UGANDA \line IN }{\insrsid13505809\charrsid7346511 THE}{\b\insrsid13505809\charrsid7346511 }{\insrsid13505809\charrsid7346511 SUPREME COURT OF UGANDA \line AT MENGO \line CORAM: ODER}{\insrsid7346511 }{\insrsid13505809\charrsid7346511 J. S. C., KAROKORA, J. S. C., MULENGA}{\insrsid7346511 }{\insrsid13505809\charrsid7346511 J. S. C., \line KANYEIHANBA, J. S. C, MUKASA-KIKONYOGO, JS. C. \line CIVIL APPEAL NO: 9 OF 1998 \line B E T W E EN \line DEPARTED ASIANS PROPERTY CUSTODIAN BOARD}{ \insrsid7346511 \'85\'85\'85\'85\'85}{\insrsid13505809\charrsid7346511 APPELLANT AND \line JAFFER BROTHERS LTD}{\insrsid7346511 \'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85}{\insrsid13505809\charrsid7346511 RESPONDENT \line }{ \insrsid7346511 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\i\insrsid13505809\charrsid7346511 (An appeal from the judgment and}{\i\insrsid7346511 orders of the Court of Appeal }{\i\insrsid13505809\charrsid7346511 (Okello, J. A., Berko J. A and Engwau J. A.) in Civil Appeal No: }{\i\insrsid7346511 43 }{\i\insrsid13505809\charrsid7346511 of 1997 dated 3rd July, 1998) \line }{ \b\i\insrsid7346511\charrsid7346511 \par }{\b\ul\insrsid13505809\charrsid7346511 JUDGMENT }{\b\ul\insrsid13505809\charrsid7346511 OF }{\b\ul\insrsid7346511 KANYEIHAM}{\b\ul\insrsid13505809\charrsid7346511 BA , }{\b\ul\insrsid13505809\charrsid7346511 J. S C. }{\b\insrsid13505809\charrsid7346511 \line }{\b\insrsid7346511 \par }{\insrsid13505809\charrsid7346511 This is an appeal from the judgment and orders of the Court of Appeal allowing the appeal with costs by the Respondent from the decision of the High Court presided over by Kato J., as he then was, dated 18th August, 1997, in Civil suit No: 31 of 1995. The learned judge dismissed with costs the Respondent\rquote s suit on the grounds that it was time barred, Respondent had no locus standi and, in any event, the suit did not disclose a cause of ac tion. Respondent appealed to the Court of Appeal which allowed the appeal and ordered that the case be remitted to the High Court for hearing on merits, with costs. The appellant is now appealing against the orders of the Court of Appeal. \line The background to this appeal may be briefly stated as follows: \line The Respondent is a Ugandan incorporated company with limited liability and owned by persons of Asian origin. With}{\insrsid7346511 }{\insrsid13505809\charrsid7346511 the expulsion of Asians in 1972 by the military regime of Id Amin the owners fled the count}{\insrsid7346511 ry the same year. At the time of}{\insrsid13505809\charrsid7346511 the expulsion, the Respondent was the registered proprietor of Plot }{ \insrsid7346511 No. 9 Hill Lane, K}{\insrsid13505809\charrsid7346511 ololo Kampala, comprised in Leasehold Regist er Volume 354, Folio 17, which, for convenience, I shall henceforth refer to as the suit property. Subsequently, the Government of Uganda took over the suit property and vested it for management purposes in }{\insrsid7346511 the Departed Asians Property Cu}{\insrsid13505809\charrsid7346511 stodian Board by virtue of the provisions of Decree No. 27 of 1973. This decree came into f}{\insrsid7346511 orce on 7/12/1973. Sometime in }{\insrsid13505809\charrsid7346511 1977, the Departed Asians Property Custodian Board purportedly sold the suit property to one Francis Nyangweso who in turn transferred it to one Moham med Magid Bagalaaliwo. On 21/4/1980, Bagalaaliwo was registered as the new proprietor, of the suit property. With the coming into force of the Expropriated Properties Act No. 9 of 1982, the suit property reverted to Government which took possession of it until Mohammed Magid Bagalaaliwo obtained a consent judgment in his }{\insrsid7346511\charrsid7346511 favor}{\insrsid13505809\charrsid7346511 from the Uganda Attorney-General, dated 8th November, 1991. \line }{\insrsid7346511 \par }{\insrsid13505809\charrsid7346511 On 7/12/1993, the Respondent obtain}{\insrsid7346511 ed from the Minister of State fo}{\insrsid13505809\charrsid7346511 r Finance and Economic Planning in charge of the Departed }{\insrsid7346511 As}{ \insrsid13505809\charrsid7346511 ians Property Board, a Lett}{\insrsid7346511 er of repossession of the suit }{\insrsid13505809\charrsid7346511 property. Following some correspondence between the parties and the Registrar of Land Titles, the Minister in a letter dated 25.9.94, clarified that the Respondent was entitled to repossess the suit property. Armed with the letters }{ \insrsid3408489\charrsid7346511 authorizing}{\insrsid13505809\charrsid7346511 repossession, the Respondent filed the original suit against Mohammed Magid Bagalaaliwo and Ronald Muwenda Mutebi to secure, inter alia, vacant possession of the suit property. At the instance of the Respo ndent, Ronald Muwenda Mutebi was dropped from the suit and at the instance and application of Mohammed Magid Bagalaaliwo and with the consent of the appellant and the Attorney - }{\insrsid3408489\charrsid7346511 General;}{\insrsid13505809\charrsid7346511 the latter two were joined in the suit as 2nd and 3rd Defendants. In his amended written statement of Defence, Mohammed Magid Bagalaaliwo countered the Respondents\rquote claim by a counter claim in which he sought, inter alia, compensation from the 2nd and 3rd defendants as an alternative remedy. \line }{\insrsid3408489 \par }{\insrsid13505809\charrsid7346511 At the hearing of the suit, Mr. Sekandi for the app}{\insrsid3408489 ellant raised three preliminary }{\insrsid13505809\charrsid7346511 objections, namely:}{\insrsid3408489 - \par }{\insrsid13505809\charrsid7346511 (1}{\insrsid3408489 ) \tab }{\insrsid13505809\charrsid7346511 That the suit was time barred \line }{\insrsid3408489 \par }{\insrsid13505809\charrsid7346511 (2)}{\insrsid3408489 \tab }{\insrsid13505809\charrsid7346511 that the}{\insrsid3408489 plaintiff had no locus standi \par }{\insrsid13505809\charrsid7346511 and (3) }{\insrsid3408489 \tab }{\insrsid13505809\charrsid7346511 that the suit disclosed no cause of action against all the defendants. \line The trial judge heard submissions and arguments on all the three grounds with which both counsel for the 1st and 3rd co }{\insrsid3408489\charrsid7346511 defendants}{\insrsid13505809\charrsid7346511 agreed. The learned trial judge upheld all the grounds, and dismissed the Respondent\rquote s suit, with costs to the appellant and the other two defendan ts. The Respondent appealed against the judgment and orders of the trial judge on seventeen grounds which in substance revolved around the three issues of objection upheld by the trial judge and the effect of the Expropriation Properties Act No. 9 of 1982 on the suit property. \line The Court of Appeal allowed the appeal with costs to the Respondent and the dismissal and other consequential orders made by the trial judge were set aside. The case was remitted to the High Court for hearing on merits and the appell ant together with the other respondents in the Court of Appeal were ordered to pay the Respondent\rquote s costs of the appeal. \line }{\insrsid3408489 \par }{\insrsid13505809\charrsid7346511 The Memorandum of Appeal to this court contains the following grounds of appeal:}{\insrsid3408489 -}{\insrsid13505809\charrsid7346511 }{\insrsid3408489 \par }\pard \s15\ql \fi-720\li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid3408489 {\insrsid13505809\charrsid7346511 1}{\insrsid3408489 - \tab }{\insrsid13505809\charrsid7346511 The learned Justices of Appeal having declined to uphold the Respondent (then Appellant) claim that it had a cause of action against the Appellant (then 2nd Respondent) erred in law in failing to dismiss the Appeal aga}{\insrsid3408489 inst the Appellant with costs. \par }{\insrsid13505809\charrsid7346511 2- }{\insrsid3408489 \tab }{\insrsid13505809\charrsid7346511 The learned Justices of Appeal having found no cau se of action against the Appellant erred in law in condemning the Appellant to pay the Respondent the costs of the Appeal. \line }{\insrsid3408489 \par }{\insrsid13505809\charrsid7346511 3- }{\insrsid3408489 \tab }{\insrsid13505809\charrsid7346511 The learned Justices of Appeal erred in law to have set aside the dismissal of the suit and other consequential orders made by the trial judge in }{ \insrsid3408489\charrsid7346511 favor}{\insrsid13505809\charrsid7346511 of the Appellant. \line }{\insrsid3408489 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid3408489 {\insrsid13505809\charrsid7346511 The Appellant asks the court for the following orders - (i) Allow the Appeal (ii) Set aside the Court of Appeal order allowing the Appeal against the Appellant with costs (iii) \line Allow the appellant costs of this Appeal and in the courts below. \line (iv) Reinstate the orders made by the High Court in favour of the Appellant including the dismissal of the suit against it and the award of costs. \line }{\insrsid3408489 \par }{\insrsid13505809\charrsid7346511 I will make three preliminary observations at this stage. In my opinion, the nature and manner in which the grounds of appeal have been framed coupled with the orders prayed for are tantamount to appealing against the whole judgment and orders of the Court of Appeal with the purpose of hoping to reverse all the decisions and orde r s of that court. Secondly, it is apparent from the memorandum of appeal and the written submissions, that all the parties in this case have been full participants in the arguments and submissions on merits of this case, from the beginning to the end. Thir dly, it is to be appreciated that the Court of Appeal merely ordered that the case be remitted to the High Court for a trial and did not finally dispose of it on merits. \line }{\insrsid3408489 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\insrsid13505809\charrsid7346511 In his written submissions, c}{\insrsid3408489 ounsel for the appellant, Hon. }{ \insrsid13505809\charrsid7346511 Sekandi, starts with ground one }{\insrsid3408489 of appeal and submits that the }{\insrsid13505809\charrsid7346511 Appellant raised a preliminary obj}{\insrsid3408489 ection that there was no cause }{ \insrsid13505809\charrsid7346511 of action against the appellant,}{\insrsid3408489 to which Mr. Bamwine, counsel }{\insrsid13505809\charrsid7346511 for the Respondent, responded with the following: \line }{\insrsid6178465 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid6178465 {\i\insrsid13505809\charrsid7346511 \'93 As to the 2nd and 3rd Defendants there is a cause of action against them in case the first defendant is declared to be the lawful owner of the suit property otherwise there is no cause of action against them as per ruling of this, court in this same case on 17.1.96\'94 \line }{\i\insrsid6178465 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid6178465 {\insrsid13505809\charrsid7346511 Counsel for Appellant further observed that the trial judge upheld the objections and said, \line }{\insrsid6178465 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid6178465 {\i\insrsid13505809\charrsid7346511 \'93Having said all }{\i\insrsid6178465\charrsid7346511 that, I}{ \i\insrsid13505809\charrsid7346511 find that the Preliminary objections raised by the Defendants were validly raised and they are upheld. I have no doubt over the fact that this suit is time barred and the Plaintiff has no locus standi as he does not hold any valid certificate of repossession nor does he have cause of action against the 3 Defendants. For those reasons the suit is dismissed with costs to the 3 Defe ndants. }{\insrsid6178465\charrsid7346511 \'93}{\insrsid13505809\charrsid7346511 \line }{\insrsid6178465 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\insrsid13505809\charrsid7346511 From this, Hon. Sekandi wonders why the Respondent did not accept the ruling of the trial judge that it had no cause of action and instead decided to drag the appellant to the Court of Appeal. Counsel points out that following his own submission, the learned Justices of Appeal were right, to have r}{\insrsid6178465 efused to uphold the Respondent}{\insrsid13505809\charrsid7346511 s claim that it had a cause of action against the Appellant. Counsel cited }{\ul\insrsid13505809\charrsid7346511 Auto Garage And Others v. Motokov (No.3), (1971) E. A. 514 }{\insrsid13505809\charrsid7346511 and }{\ul\insrsid13505809\charrsid7346511 Cottar v. Attorney General for Kenya }{\insrsid13505809\charrsid7346511 (1938) }{\ul\insrsid13505809\charrsid7346511 5 EACA 18 }{\insrsid13505809\charrsid7346511 to emphasize what constitutes a cause of action. \line Counsel further contended that the Court of Appeal having found that the Respondent had no cause of action against the appellant it was duty bound to dismiss the appeal with costs to the appellant as there was no justification for continuing with the appellant in these proceedings in which it had caused no wrong. In counsel\rquote s opinion, the order for a trial on merits of the case should not have been applied to the Appellant or the Attorney-General. Counsel submitted that the appellant ought to have been rewarded with the right medicine for litigation which }{ \insrsid12855601\charrsid7346511 is}{\insrsid13505809\charrsid7346511 costs and damages. \line In his supplementary written submissions, Counsel for the Appellant further submits that the fact that it was no t the Respondent who joined the appellant in the suit as defendant is \line immaterial as far the cause of action is concerned. While citing }{\ul\insrsid13505809\charrsid7346511 Mera Farmers Co-operative Union v. Abdul Aziz Suluman }{ \insrsid13505809\charrsid7346511 (No.1), }{\ul\insrsid13505809\charrsid7346511 (1966) E. A. 436, }{\insrsid13505809\charrsid7346511 per Daffus, Ag. V. P., at page 439, Cou nsel submitted that there are no exceptions to the rule that there must be a cause of action before a party can proceed against another in any court. \line }{\insrsid12855601 \par }{\insrsid13505809\charrsid7346511 For the Respondent, Messrs. Bamwine and Walubiri of Kwesigabo, Bamwine and Walubiri & Co. Advocates, lodged the Respondent\rquote s written submissions }{\insrsid12855601\charrsid7346511 on}{ \insrsid13505809\charrsid7346511 ground 1 of appeal. It is the Respondent\rquote s submission that whereas Respondent filed a suit against Mohammed Magid Bagalaaliwo and Ronald Muwenda Mutebi whose name was later withdrawn on the initiative of the Respo ndent, it was counsel for Mr. Bagalaaliwo with the consent of counsel for the subsequent 2nd and 3rd Defendants who insisted that they be joined. After an order to join the two parties as co- defendants, it was counsel for the Appellant who proceeded to s ubmit on the grounds of objection. Counsel for the other two defendants concurred with Mr. Sekandi\rquote s submissions on the objection. \line According to counsel for the Respondent, the three grounds upon which counsel for the appellant and the other two defendants made submissions were intertwined and inseparable. Counsel for the Respondent further submitted that it is on the understanding that the preliminary objections were interlinked that the trial judge stated, \line }{\insrsid12855601 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid12855601 {\i\insrsid13505809\charrsid7346511 \'93The whole issue seems to revolve on one question which is when did the cause of action, if any, arise and when did time begin to run against the plaintiff }{\insrsid13505809\charrsid7346511 ?\'93 \line }{\insrsid12855601 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\insrsid13505809\charrsid7346511 Counsel for the Respondent emphasized that it was because the three Defendants insisted or agreed to be joined that Respondent was forced to amen d the pleadings to include them notwithstanding that it had objected through Counsel that it had no case either against the Attorney-General or the Departed Asians Property Custodian Board. \line Counsel pointed out that the 2nd and 3rd Defendants were joined not as \'93any person who ought to have been joined as Defendants\'94 rather as parties \'93 whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit.\'94 Counsel cited Order 1, rule 10 (2) of the Civil Procedure Rules. It was counsel \rquote s contention that where a plaint is amended to conform }{\insrsid12855601\charrsid7346511 to}{\insrsid13505809\charrsid7346511 the requirements of the subrule, it does not need to conform }{\insrsid12855601\charrsid7346511 to}{ \insrsid13505809\charrsid7346511 0.7 r 11 (a) or 0. 6r. 29 of the C. P. R. provided that such a plaint discloses a cause of action against the original Defendant as in this case. On this point Counsel for the Respondent concluded that therefore it was not necessary for the Justices of the Court of Appeal to pronounce themselves on the q uestion of whether or not there was a cause of action against the 2nd and 3rd Defendants. \line }{\insrsid12855601 \par }{\insrsid13505809\charrsid7346511 Counsel further submitted that since the Appellant and the Attorney-General had been joined at the instance of the 1st Defendant, it was not necessary for the High Co urt or the Court of Appeal to consider whether there was a cause of action as between the Plaintiff and the 2nd and 3rd Defendants. \line Counsel for the Respondent submitted that as the reason for joining the Appellant and the Attorney-General was to claim com pensation from them in the event that the property was decreed to belong to the plaintiff, the issue of cause of action should only have arisen as between the 1st Defendant, Bagalaaliwo and the 2nd and 3rd Defendants. Counsel believed that this is the rea s on why the Justices of Appeal declined to make a finding on the existence of a cause of action between the Appellant and the Respondent. Counsel argued that in any event, the plaint discloses a cause of action against the Attorney-General as was contained in paragraph 15 & 16 of the amended plaint. \line }{\insrsid12855601 \par }{\insrsid13505809\charrsid7346511 Counsel for the Respondent, cited the cases of }{\ul\insrsid12855601 Dollfus Mieg Et }{\ul\insrsid13505809\charrsid7346511 Compagne S. A - v. Bank of England (1951) ICH. }{\insrsid12855601 33, and }{ \ul\insrsid13505809\charrsid7346511 Montgomery v}{\ul\insrsid12855601 . Foy, Morgan and Co. (1895) 2 Q.}{\ul\insrsid13505809\charrsid7346511 B. 321 }{\insrsid12855601 in support }{\insrsid13505809\charrsid7346511 of their submissions. In add ition, counsel submitted that if no cause of action is disclosed against the added defendants their costs should be paid by the party which brought them into the suit. He cited the cases of }{\ul\insrsid13505809\charrsid7346511 Norbury Natzi & Co. Ltd v. Griffiths (1918) 2K. B. 369, }{\insrsid13505809\charrsid7346511 at 380, and }{\ul\insrsid13505809\charrsid7346511 Scheren v. Count}{\ul\insrsid12855601 ing Instruments Ltd (1986) 2 AL}{\ul\insrsid13505809\charrsid7346511 LER, 529, }{ \insrsid13505809\charrsid7346511 at p. 536 and S. 27 of CPA to support the submission. After wandering in the realm of statutory interpretation, counsel for the Respondent returned to ground one of appeal by making submissions }{\insrsid12855601 on what is meant by the phrase}{\insrsid13505809\charrsid7346511 effectually and completely to adjudicate upon and settle all questions involved in the suit.\'94 Counsel then cited a number of decisions including }{\ul\insrsid12855601 Santana Fernan}{ \ul\insrsid9649780 des v Kara Arj}{\ul\insrsid13505809\charrsid7346511 an & Sons & Two Others. (1961) E. A 693 Tanzania (sic); Horwel1 v. London General Omnibus Co. Ltd, (1877) 2 EXD 365, }{\insrsid13505809\charrsid7346511 to show the meaning and effect of similar circumstances as of this appeal. \line Counsel further distinguished the present case from those cited by learned counsel for the appellant such as }{\ul\insrsid13505809\charrsid7346511 Mera Farmers Cooperative Union }{\insrsid13505809\charrsid7346511 v. }{\ul\insrsid13505809\charrsid7346511 Abdul Aziz Suluman (no.1) (1996) E. A. 436 }{\insrsid13505809\charrsid7346511 and }{\ul\insrsid9649780 Auto Garage v. Motokov}{ \ul\insrsid13505809\charrsid7346511 (No.3) (1971) E. A. 514 }{\insrsid13505809\charrsid7346511 in which other defendants were joined in the respective plaints by the plaintiffs themselves as opposed to this appeal where the plaintiff actually opposed the application to join in the 2nd and 3rd Defendants. \line Thereafter counsel for the Respondent reiterated the same reasons as before citing additional authorities such as }{\ul\insrsid13505809\charrsid7346511 Iron & Steel Wares Ltd v. C. W. Martyr Co. (1956) 23 EACA, 175, }{\insrsid13505809\charrsid7346511 and }{\ul\insrsid13505809\charrsid7346511 Hamilton v. Seal (1904) 2K. B.262 at }{\b\ul\insrsid13505809\charrsid7346511 p. }{\ul\insrsid13505809\charrsid7346511 263, }{\insrsid13505809\charrsid7346511 to reemphasize the same points. Counsel further submitted that since the 1st Defendant applied to have the 2nd and 3rd Defendants to be joined in the proceedings and undertook to pay their costs, it was not incumbent upon the Respondent to determine whether and when this joint enterprise should cease. \line }{\insrsid9649780 \par }{\insrsid13505809\charrsid7346511 There can be no dispute that the 2nd and 3rd Defendants were joined in the suit on the application of the}{\insrsid9649780 1st Defendant, Mohammed Magid B}{\insrsid13505809\charrsid7346511 agalaaliwo. In a Notice of Motion filed by his counsel, Mr. John Katende, under Order 1 }{\insrsid9649780 Rule 10 (2) and 13 and }{\insrsid13505809\charrsid7346511 Order 48 Rules 1 & 3 of the Civil Procedure Rules. Counsel for 1st Defendant asserted, \line }{ \insrsid9649780 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9649780 {\i\insrsid13505809\charrsid7346511 \'93Take further note that (a}{\i\insrsid9649780 ) The presence of the Attorney }{\i\insrsid13505809\charrsid7346511 -General of the Republic of Uganda and the Departed Asians Property Custodian Bo}{\i\insrsid9649780 ard in this suit is absolutely }{\i\insrsid13505809\charrsid7346511 necessary in order to e}{\i\insrsid9649780 nable this Honourable Court to }{\i\insrsid13505809\charrsid7346511 effectually and completely adjudicate upon and settle all questions involved in this suit, and (b) the interests of both the applicant an}{ \i\insrsid9649780 d justice shall be jeopardised }{\i\insrsid13505809\charrsid7346511 without the presence and }{\i\ul\insrsid13505809\charrsid7346511 full participation of the }{\i\insrsid13505809\charrsid7346511 Attorney }{ \insrsid13505809\charrsid7346511 - }{\i\insrsid13505809\charrsid7346511 General of the Republic of Uganda and the Departed Asians Property Custodian Board\'94. \line }{\i\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid9649780 {\insrsid13505809\charrsid7346511 In her affidavit the wife of the 1st Defendant stated in paragraphs 13 and 14 that she believed that both the Departed Asians Property Custodian Board a}{\insrsid9649780 nd the Attorney\emdash General should }{\insrsid13505809\charrsid7346511 be added as co-dependants. }{\insrsid9649780\charrsid7346511 Mrs.}{\insrsid13505809\charrsid7346511 Bagalaaliwo\rquote s affidavit was \line supported by another affidavit }{\insrsid9649780 sworn and filed by Mr. Samuel, }{ \insrsid13505809\charrsid7346511 S. Serwanga, counsel for the 1}{\insrsid9649780 st Defendant, in which learned }{\insrsid13505809\charrsid7346511 counsel asserted, \line }{\insrsid9649780 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9649780 {\i\insrsid13505809\charrsid7346511 \'93 I thus verify and believe that the Attorney-General should be made a party to this suit\'94 \line }{\i\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid9649780 {\insrsid13505809\charrsid7346511 and concluded, \line }{\insrsid9649780 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9649780 {\i\insrsid13505809\charrsid7346511 \'93wherefore I swear this affidavit in support of the applicant\rquote s application to join the Attorney-General of the Republic of Uganda and the Departed Asians Property Custodian Board as co-defendants to this suit\'94. \line }{\i\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\insrsid13505809\charrsid7346511 In response, the Respondent presented an affidavit sworn by Mr. Anwar Jaffer in which he objected to the inclusion of the Attorney-General and the Departed Asians Property Custodian Board as defendants, except if they came in by way of third party proceedings. On his part, the Attorney-General, through an affidavi t sworn and}{\insrsid9649780 filed by State Attorney, Carol}{\insrsid13505809\charrsid7346511 ine Mayanja, initially objected to being joined as a party. \line However, when the matter came up before the Hon. Musoke-Kibuuka, }{ \insrsid9649780\charrsid7346511 Ag. J.}{\insrsid13505809\charrsid7346511 the Attorney-General and Departed Asians Property Custodian Board did not object to being joined as parties. It is therefore clear that the Appellant and the Attorney - General were joined in the plaint on the instance of the 1st Defendant and his counsel. Thereafter, the Respondent was forced against his will as expressed in his written objection, to include both co-defendants in his subsequent pleadings. In the amended plaint, the Respondent prayed for costs in the suit. \line }{\insrsid9649780 \par }{\insrsid13505809\charrsid7346511 Surprisingly, when it came to the hearing of the substantive claim, both the Attorney-General and the Departed Asians Property Custodian Board took the initiative to argue the substantive grounds going to the merits of the case instead of contending themselves with a stand of objecting to being parties to the suit. \line }{\insrsid9649780 \par }{\insrsid13505809\charrsid7346511 Thus, Mr. Sekandi for the 2nd Defendant made the first submission on the merits of the plaint by arguing that the suit was time barred, the plaintiff had no locus standi as a letter of repossession is not the same thing as a certificate of Repossession and that there was no cause of action. Counsel for the other two defendants supported the submissions of Mr. Sekandi. It is on the strength of these submissions that the trial judge founded his final judgment which reads, in part, \line }{\insrsid9649780 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9649780 {\i\insrsid13505809\charrsid7346511 \'93 Having said all that I find that the preliminary objections raised by the defendants were validly raised and they are upheld. I have no doubt over the fact that this suit is time barred and the plaintiff has no locus standi as he does not hold any valid certificate of repossession nor does he have cause of action against the 3 defendants. For those reasons the suit is dismissed with costs to the three defendants\'94. \line }{\i\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid9649780 {\insrsid13505809\charrsid7346511 It is at this stage that the Respondent decided to appeal against the judgment and orders of the High Court. I do not agree with the submission of counsel for the appe llant that the Respondent should have preferred an appeal only against the 1st defendant. \line }{\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\insrsid13505809\charrsid7346511 I agree with the submission of counsel for the Respondent that a clear distinction is called for between joining a party who ought to have been joined as a Defendant and one whose presence before the court is necessary in order to enable the court effectually and completely adj}{\insrsid9649780 udicate upon and settle all }{\insrsid13505809\charrsid7346511 questions inv}{\insrsid9649780 olved in the suit. \line

\par Order I r.l0}{\insrsid13505809\charrsid7346511 (2) reads as follows: \line }{\insrsid9649780 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9649780 {\i\insrsid13505809\charrsid7346511 \'93The court may at any stage of the procee dings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as \line plaintiff or defendant be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added\'94 \line } {\i\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid9649780 {\insrsid13505809\charrsid7346511 This rule is similar to the English R. S. C Order 16 r. 11 under which the case of }{\ul\insrsid13505809\charrsid7346511 Amon v. Raphael Tuck & Sons Ltd, }{\insrsid9649780 (1956) 1 }{\ul\insrsid13505809\charrsid7346511 ALLER }{\b\ul\insrsid13505809\charrsid7346511 p. }{\ul\insrsid13505809\charrsid7346511 273, }{\insrsid13505809\charrsid7346511 was considered and decided and in which it was said that a party may be joined in a suit, not because there is a cause of action against it, but because that party\rquote s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter. \line }{\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\insrsid13505809\charrsid7346511 In my opinion, the settling of all questions involved in the s uit did not cease with the judgment of the trial judge nor, indeed, that of the Court of Appeal. In the latter court the appellant continued to take initiative in having the Respondent\rquote s suit dismissed on the same grounds and with the same reasons advanced in the High Court. \line When the Respondent first sought leave to appeal to the Court of Appeal, Appellant through its counsel did not object or complain. Court granted leave to appeal in respect of the fist and second grounds of preliminary objection and for which Mr. }{ \insrsid9649780\charrsid7346511 Sekandi;}{\insrsid13505809\charrsid7346511 counsel for the Appellant had so ably argued and convinced the trial judge. In my opinion, had the Respondent dropped the appellant from the de}{\insrsid9649780 fendants it would have been }{\insrsid13505809\charrsid7346511 taking a very big risk in its quest to have the Court of App eal reverse the decisions of the trial judge on the same grounds of objection which counsel for the appellant had advanced. When it came to the submissions on the merits of the case in the Court of Appeal, again Counsel for the Appellant was a full partic ipant in the attempts to have that court confirm the findings and judgment of the High Court. On 1/6/99 counsel for the appellant filed written submissions. From page 146 }{\insrsid9649780 paragraph}{\insrsid13505809\charrsid7346511 22 to page 151 paragraph one, it is the learned counsel for the Appellant who is taking the court through case law and arguments on the merits of the case. The record of proceedings show that Mr. Sekandi on 2/6/99 was still }{ \insrsid9649780\charrsid7346511 addressing}{\insrsid13505809\charrsid7346511 court on the merits of the case and citing cases such as }{\ul\insrsid13505809\charrsid7346511 Civil Appeal No. 36 of 1996, Makerere Properties Ltd v. Attorney General, }{ \insrsid13505809\charrsid7346511 and }{\ul\insrsid13505809\charrsid7346511 Civil Appeal No. 49 of 1993 , Victoria Tea Estate Ltd v. James Bemmba and Another, }{\insrsid13505809\charrsid7346511 in pages 151 to page 156 of the proceedings before the Court of Appeal and lastly praying that the whole appeal should be dismissed. I n fact, in the Court of Appeal it was the appellant rather than the other defendants who carried the burden of making submissions and arguments for the whole appeal to be dismissed. For instance, at page 156 of the record of proceedings, paragraphs 30 and

34 show the learned counsel for the appellant as the main actor in the proceedings. Mr. Serwanga for the 1st Defendant and Mr. Bukenya for the Attorney-General merely associate themselves fully with the submissions of their learned friend, Sekandi who was for the 2nd appellant and who made submissions for dismissal of the Appeal. The court was unanimous in rejecting Counsel\rquote s submissions. In his leading judgment of the Court of Appeal learned Okello, J. A. said, \line }{\insrsid9649780 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9649780 {\i\insrsid13505809\charrsid7346511 \'93Failure by the 1st defendant to comply with the quit notice gave the appellant a cause of action against the 1st Respondent. The appellant therefore has locus standi to bring the suit and has a cause of action against the 1st respondent\'94. \line }{\i\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\insrsid13505809\charrsid7346511 Nowhere in the judgment of their Lordships in the Court of A ppeal, is there any mention that }{\insrsid9649780 there is no cause of action }{\insrsid13505809\charrsid7346511 against any of the other defendants. In my opinion, it was not necessary to so find nor can their Lordships\rquote silence on the matter be taken as a finding. The court f urther decided that the counter-claim did not automatically abate with the dismissal of the main suit by the trial judge. In other words, it survived. It is my view that with the order of the Court of Appeal that the case be remitted to the High Court for trial and that the counterclaim in which the appellant and the Attorney-General are defendants, was not extinguished by the judgment of the trial judge, the joining of the Appellant whose \'93 presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit\'94 , need not have been addressed either by the Respondent in this appeal or the Court of Appeal. It is my }{\insrsid9649780\charrsid7346511 opinion that}{\insrsid13505809\charrsid7346511 the effect of the judgment and order of t he Court of Appeal, is that questions involved in the suit have yet to be effectually and completely adjudicated upon. If the Appellant or either of the other Defendants felt that they were no longer needed, they should have specifically raised the matter

before court. Seeing that they did not, no ground or reasons have been advanced to convince me that the Respondent had any obligation to drop any of the defendants especially those who were joined against its will as expressed by the affidavit of Mr. Jaff er and with their consent as the evidence clearly shows. \line }{\insrsid9649780 \par }{\insrsid13505809\charrsid7346511 It is also true that the Respondent won his appeal on all the seventeen grounds, even if the Court of Appeal was silent on part of ground 16. Although courts have discretion as to the awarding of cos ts, it is a general rule of law and practice that costs should normally follow the event in the suit. \line I am persuaded by the principle established in }{\ul\insrsid9649780 J. B. K}{\ul\insrsid13505809\charrsid7346511 ohli and Others v. Bachulal Popatlal (1947) E. A. 219 }{\insrsid13505809\charrsid7346511 at pp 230 -231 where the court said, \line }{\insrsid9649780 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9649780 {\i\insrsid13505809\charrsid7346511 \'93Having regard to the above authorities it seems to be that where a discretion as to costs has been exercised by a judge his discretion is \'93impeachable unless he can be shown to have taken into consideration matters which are irrelevant to the issue in the ca se or non-existent. \line Further an appeal would be entertained from the exercise of discretion as t}{\i\insrsid9649780 o the costs where the Court of }{\i\insrsid13505809\charrsid7346511 Appeal is satisfied that the lower court applied a wrong principle of law\'94 \line }{\i\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid9649780 {\insrsid13505809\charrsid7346511 The ground advanced on behalf of the Appellant that the Court of Appeal by not stating categorically that there was or there was not a cause of action against the Appellant, the appellant had won that aspect of the appeal is in my opinion, not convincing. As I have endeavoured to show, the appellant was jo ined for a different reason and on a different criterion. Therefore ground one of appeal must fail. \line }{\insrsid9649780 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\insrsid13505809\charrsid7346511 On ground two of appeal I can see no merit in separating it from ground one which I have already disposed of. The joining of the appellant and the Attorney- General had no relevancy to the cause of action. In any event, the appellant placed the whole of its submissions at the disposal of the fortunes of the 1st Defendant and it is my opinion that it either succeeds or fails with him. Counsel for the appellant

cites the provisions of section 27/ (1) of CPA, (Cap.65) which only re affirm the wide discretion a court has in awarding costs. Counsel further argued that if the Justices of Appeal had properly directed themselves in that they were considering each Resp ondent\rquote s case independently and at the end came to the conclusion that there was a cause of action against 1ohammed Magid Bagalaaliwo which should be tried on merit, but there was none against Departed Asians Property Custodian Board or the Attorney-General , they ought to have allowed the appeal against Magid M. Bagalaaliwo, but dismiss the appeal against Departed Asians Property Custodian Board and the Attorney-General. In response, Counsel for the Respondent submitted that it was the 2nd and 3rd Defendant s who abandoned the idea of submitting their individual defences and instead joined forces with the 1st Defendant for the joint endeavour of defeating the Respondent on every issue. Counsel for 1st and \line 3rd Defendants concurred with the submissions of M r. Sekandi at every occasion both in the High Court and the Court of Appeal, thereby making it impossible for both the Respondent and the courts to know or indeed appreciate whether or not they had separate defences. \line }{\insrsid9833105 \par }{\insrsid13505809\charrsid7346511 I will not join learned Counsel for the Respondent on the same voyage of condemning the 2nd and 3rd Defendants for what he calls }{\insrsid9833105\charrsid7346511 \'93their}{\insrsid13505809\charrsid7346511 illegitimate use of the machinery of justice\'94 while quoting the words of Sir Barclays Nihill in }{\ul\insrsid13505809\charrsid7346511 Schanker Dar Mayer and Ors }{\insrsid13505809\charrsid7346511 v. }{\ul\insrsid13505809\charrsid7346511 Trustees of the Rahimtulla Lall}{\ul\insrsid9833105 i Hirj}{\ul\insrsid13505809\charrsid7346511 i Charitable Trust, (1955) XXII EACA 18, }{\insrsid13505809\charrsid7346511 at p. 20, last paragraph. However, it is my opinion that the manner and the fashion in which counsel made submissions and argued the case, left no other option to the Court of Appeal in finding as they did. \line Therefore ground 2 also fails. \line }{ \insrsid9833105 \par }{\insrsid13505809\charrsid7346511 Ground three of appeal is to say the least peculiar. It }{\i\insrsid13505809\charrsid7346511 states: \line }{\i\insrsid9833105 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9833105 {\i\insrsid13505809\charrsid7346511 \'93The learned Justices of A}{\i\insrsid9833105 ppeal erred in law to have set }{\i\insrsid13505809\charrsid7346511 aside the dismissal of the suit and other consequential orders made by the trial judge in favour of the Appellant\'94 \line }{\i\insrsid9833105 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid9833105 {\insrsid13505809\charrsid7346511 Counsel for appellant wishes this court}{\insrsid9833105 to set aside the judgment and o}{\insrsid13505809\charrsid7346511 rders of the Court of Appeal which were based on submissions and reasons upon which the entire plaint was founded and yet the same counsel\rquote s submissions in this appeal has been primarily on costs. In my opinion, this approach is unacceptable. However, it is also my view that this ground of appeal opens for this court an opportunity to comment upon the judgment and orders of the trial judge. It is my opinion that bearing in mind the manner in which the 2nd and 3rd Defendants came to be joined in the plaint and against the wishes of the Respondent, the trial judge erred in awarding costs to all the three defendants against the Respondent. In }{ \ul\insrsid13505809\charrsid7346511 Kiska Ltd v. Augelias (1969) }{\ul\insrsid9833105\charrsid7346511 E. A.6,}{\insrsid13505809\charrsid7346511 Sir Clement De Lestang, Ag. P, observed, \line }{\insrsid9833105 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9833105 {\i\insrsid13505809\charrsid7346511 \'93Thus where a trial court has exercised its discretion on costs, an Appellate court should not interfere unless the discretion has been exercised unjudicially or on a wrong principle. Where it gives no reaso n for its discretion the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute\'94 good reasons\'94 within the meaning }{ \insrsid13505809\charrsid7346511 of the }{\i\insrsid13505809\charrsid7346511 rule\'94. \line }{\i\insrsid9833105 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid9833105 {\insrsid13505809\charrsid7346511 I am also aware of the principle enounced in the case of }{\ul\insrsid9833105 Scherer }{\ul\insrsid13505809\charrsid7346511 v. Counting Instruments Ltd (1986) 2 AER. 529 }{\insrsid13505809\charrsid7346511 where at p. 533 it was said \line }{\insrsid9833105 \par }\pard \s15\ql \li720\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\ipgp1\pararsid9833105 {\i\insrsid13505809\charrsid7346511 \'93 if therefore, in the present case the judge had material before him, however slight, on which he could base the exercise of discretion in ordering the plaintiff to pay the Defendants costs of the motion to dismiss, we cannot interfere\'94 \line }{ \i\insrsid9833105 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid9833105 {\insrsid13505809\charrsid7346511 In my opinion, the trial judge was wrong in principle and in the justice of the case when he awarded costs to the defendants who had been joined in the suit against the wishes of the Respondent. In the result, the Third and last ground }{\insrsid9833105 of appeal must fail. \line As the Appellant had failed o}{\insrsid13505809\charrsid7346511 n}{\insrsid9833105 all}{\insrsid13505809\charrsid7346511 groun}{\insrsid9833105 ds }{\insrsid13505809\charrsid7346511 this appeal fails.}{\insrsid9833105 In Consequence }{\insrsid13505809\charrsid7346511 I would }{\insrsid9833105 dismiss this appeal and confirm the }{\insrsid13505809\charrsid7346511 orders of the Court of Appeal and award costs to the \line Respondents in this court and in the court below. \line }{\insrsid9833105 \par DATED AT MENGO }{\insrsid13505809\charrsid7346511 THIS}{\insrsid9833105 27}{\super\insrsid9833105\charrsid9833105 TH}{\insrsid9833105 DAY OF MAY }{\insrsid13505809\charrsid7346511 1999 \line }{\insrsid9833105 \par }\pard \s15\ql \li0\ri0\sb100\sa240\sbauto1\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\ipgp1\pararsid7346511 {\insrsid9833105 HON. }{\insrsid13505809\charrsid7346511 JUSTICE }{\insrsid9833105 G}{ \insrsid13505809\charrsid7346511 .}{\insrsid9833105 W}{\insrsid13505809\charrsid7346511 . KANYEIHAMBA \line }{\ul\insrsid13505809\charrsid7346511 JUSTICE OF THE SUPREME COURT }{\insrsid13505809\charrsid7346511 \line }{\insrsid9833105 \par \par \par \par }{\b\ul\insrsid13505809\charrsid7346511 JIJDGEMENT OF ODER, J. S. C. }{\b\insrsid13505809\charrsid7346511 \line }{\b\insrsid9833105 \par }{\insrsid13505809\charrsid7346511 I have }{\insrsid13505809\charrsid9833105 had}{\b\insrsid13505809\charrsid7346511 }{\insrsid13505809\charrsid9833105 the}{\b\insrsid13505809\charrsid7346511 }{\insrsid13505809\charrsid7346511 benefit }{ \insrsid13505809\charrsid9833105 of}{\b\insrsid13505809\charrsid7346511 }{\insrsid13505809\charrsid7346511 reading in draft the }{\insrsid9833105\charrsid7346511 judgment}{\insrsid13505809\charrsid7346511 of Kanyeihamba, J. S . C. I agree with his conclusions and the reasons. The appeal should be dismissed. I also agree with the orders proposed by him. \line }{\insrsid9833105 \par }{\insrsid13505809\charrsid7346511 Since Karokora, J. S. C; Mulenga, J. S. C and Kikonyogo, J. S. C. also agree there will be an order in those terms. \line }{\insrsid10886830 \par }{\insrsid13505809\charrsid7346511 Dated}{\insrsid9833105 }{\insrsid13505809\charrsid7346511 at}{\insrsid9833105 }{\insrsid13505809\charrsid7346511 Mengo}{\insrsid9833105 }{\insrsid13505809\charrsid7346511 this day}{\insrsid9833105 of May}{ \insrsid13505809\charrsid7346511 1999. }{\insrsid13505809 \par }{\insrsid9833105 HON. JUSTICE G. W. KANYEIHAMBA}{\insrsid9833105\charrsid7346511 \par }{\b\ul\insrsid13505809\charrsid7346511 JUSTICE OF }{\b\ul\insrsid13505809\charrsid10886830 THE}{\ul\insrsid13505809\charrsid7346511 }{\b\ul\insrsid13505809\charrsid10886830 SUPREME}{\ul\insrsid13505809\charrsid7346511 }{ \b\ul\insrsid13505809\charrsid7346511 COURT. }{\insrsid13505809\charrsid7346511 \par }{\ul\insrsid10886830 \par \par \par \par \par \par \par \par \par }{\b\ul\insrsid13505809\charrsid10886830 JIJDGMENT}{\ul\insrsid13505809\charrsid7346511 }{\b\ul\insrsid13505809\charrsid7346511 OF KAROKORA, J. S. C. }{\b\insrsid13505809\charrsid7346511 \line }{\b\insrsid10886830 \par }{\b\insrsid13505809\charrsid7346511 I }{\insrsid13505809\charrsid7346511 have had the benefit of reading in draft, the judgment prepared by Kanyeihamba, J. S. C., and do agree with his conclusion that the appeal must fail. I wish only to add that although right from the commencement of the suit the plaintiff was aware that he had no case against the ap p ellant and the Attorney-General and although it was made clear that the costs that might arise from the proceedings of the case would be paid by the defendant/M. M. Bagaalaliwo, Hon. Mr. Ssekandi, Counsel for appellant fully and actively participated in th e suit right from the High Court and fully addressed the Court of Appeal on the merits of the appeal and invited the Court to dismiss it. He cited the cases of }{\b\i\ul\insrsid13505809\charrsid7346511 Makerere Properties Ltd v}{\b\i\ul\insrsid10886830 } {\b\i\ul\insrsid13505809\charrsid7346511 A. G }{\b\i\ul\insrsid10886830\charrsid7346511 Civil Appeal}{\b\i\ul\insrsid13505809\charrsid7346511 No. 36 of 1996 }{\insrsid13505809\charrsid7346511 (unreported) and }{\b\i\ul\insrsid13505809\charrsid7346511 Victoria Tea Estate Ltd v James Bemba & Another Civil Appeal No. 49/93 }{\insrsid13505809\charrsid7346511 in an attempt to persuade the Court of Appeal to dismiss the appeal. \par In my opinion, since the appellant was joined in the suit not because the plaintiff had any cause of action against them, but because the l defendant considered that their presence was necessary to enable the Court effectually and completely adjudicate and settle all questions involved in the suit under Order 1 r 10(2) which application the appellant never opposed, and the Court of Appeal h as not yet effectually and completely adjudicated and settled all questions involved in the suit, it would be premature at this stage to hold that ground one of appeal succeeded when an order of retrial of the suit on merit was made. \line }{ \insrsid10886830 \par }{\insrsid13505809\charrsid7346511 In fact, considering t he circumstances under which the appellant was joined, Hon. Ssekandi, Counsel for appellant, needed not to have involved himself in the merits of the case, since the plaintiff was claiming nothing from them. \line }{\insrsid10886830 \par I}{\insrsid13505809\charrsid7346511 n view of the above, ground one fails. The other grounds are adequate}{\insrsid10886830 ly covered by my learned brother}{\insrsid13505809\charrsid7346511 Kanyeihamba, J. S. C., and so I have nothing to add. \line }{ \insrsid10886830 \par Dated at Mengo this 27}{\super\insrsid10886830\charrsid10886830 th}{\insrsid10886830 day of May }{\insrsid13505809\charrsid7346511 1999 \line }{\insrsid10886830 \par }{\b\i\insrsid13505809\charrsid10886830 A. N}{\i\insrsid13505809\charrsid7346511 . }{\b\i\insrsid10886830 KAROKORA}{\b\i\insrsid13505809\charrsid7346511 , \line JUSTICE OF THE SUPREME COURT. \line }{\insrsid7101426 \par \par \par \par \par \par \par \par \par \par \par \par \par \par \par }{\ul\insrsid13505809\charrsid7346511 JUDGMENT OF MULENGA. J. S. C. }{\insrsid13505809\charrsid7346511 \line }{\insrsid7101426 \par }{\insrsid13505809\charrsid7346511 This appeal arises from a decision of the Court of Appeal in the above mentioned case wherein the Departed Asians Property Custodian Board to which I shall refer as }{\i\insrsid13505809\charrsid7346511 \'93the }{ \insrsid13505809\charrsid7101426 Custodian}{\i\insrsid13505809\charrsid7346511 }{\insrsid13505809\charrsid7101426 Board}{\i\insrsid13505809\charrsid7346511 \'94 }{\insrsid13505809\charrsid7346511 was one of three Respondents, and the above named Jaffer Brothers Ltd., was Appellant. The Court of Appeal allowed the appeal which was from a High Court order dismissing a suit on a preliminary objection. It was ordered that the suit be remitted to the High Court for hearing on merits, and that }{\i\insrsid13505809\charrsid7346511 \'93 the Respondents shall pay the Appellant\rquote s costs of the appeal.\'94 \line }{\i\insrsid7101426 \par }{\insrsid13505809\charrsid7346511 The Custodian Board alone, appealed to this Court against the decision of the Court of Appeal, contending in three grounds of appeal that the Court of }{\insrsid7101426 Appeal}{\insrsid13505809\charrsid7346511 erred in failing to dismiss the appeal as against the Custodian Board, in condemning the Custodian Board to pay costs of the appeal and in setting aside the orders of the trial court. All t}{\insrsid7101426 he grounds are premised on the }{ \insrsid13505809\charrsid7346511 virtually undisputed point of mixed law and fact that Jaffer Brothers Ltd. had no cause of action against the Custodian Board. \line }{\insrsid7101426 \par }{\insrsid13505809\charrsid7346511 The facts and general background to this appeal are ably set out in the judgment of my learned brother Justice Kanyeihamba, J. S. C. which I had advantage of reading in draft. There is no need to repeat them here. I agree that all three grounds of appeal have no merit. They ought to fail. I only wish to make two observations. \line }{\insrsid7101426 \par }{\insrsid13505809\charrsid7346511 The first observation is that I think, with all due respect, that the Custodian Board with its legal advisors appears not to have appreciated the status in which it was joined to the suit along with the Attorney-General. The two were joined as defendants, not because Jaffer Brothers Ltd. had any cause of action against them. They were joined because, on application of Mohamed M. Bagalaaliwo, the origi}{\insrsid7101426 nal lone defendant in the suit, }{\insrsid13505809\charrsid7346511 the tria l court accepted and ordered that their presence in the suit was necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit, in accordance with 0.1 r.10 (2) of the Civil Procedure Rul es. Initially, by Affidavit sworn on }{\insrsid13505809\charrsid7101426 16th}{\b\insrsid13505809\charrsid7346511 }{\insrsid13505809\charrsid7346511 January}{\insrsid7101426\charrsid7346511 , 1996}{\insrsid13505809\charrsid7346511 , by Caroline Mayanja, a State Attorney, on behalf of both the Attorney General and the Custodian Board, and in reply to Mohamed M. Bagalaaliwo\rquote s application it was averred that the presence of both in t he suit was not necessary because the issues in the suit were between Jaffer Brothers Ltd. and Mohamed M. Bagalaaliwo only. However, according to the court record, when the application came up for hearing the following day }{ \insrsid13505809\charrsid7101426 1}{\insrsid13505809\charrsid7101426 7th}{\b\insrsid13505809\charrsid7346511 }{\insrsid13505809\charrsid7346511 January 1996, Mr. Katende co unsel for Mohamed M. Bagalaaliwo, stated to court, in the presence of Ms Mayanja and Mr. Ssekandi, Counsel for the Attorney General and the Custodian Board respectively, that he had been informed by the said Counsel that their clients had no objection to being joined to the suit \line as co-defendants. No protest was raised by either counsel and consequently the order for joinder was granted by consent, as it were. There is no indication why the stand suggested in the Affidavit of }{ \insrsid7101426\charrsid7346511 Caroline}{\insrsid13505809\charrsid7346511 Mayanja referred to above was abandoned or not pursued, but in that failure, the Custodian Board lost its first opportunity to resist being made party to the suit by showing that its presence in the suit was not necessary. This is wh at gives me the impression that there was a lack of appreciation of the special status the Custodian Board, and Attorney General, were put in by that consent order. They became co-defendants not on basis of a cause of action against them, but on the premi se that their presence in the suit was necessary, a premise that could have been challenged, but was not challenged, to test whether the criteria for such order was satisfied. \line }{\insrsid7101426 \par }{\insrsid13505809\charrsid7346511 I have not laid my hands on any reported decision in East Africa directly on the point of criteria for determining that the presence of a person is necessary under 0.1 r.1O(2) of the Civil Procedure rules. }{ \b\i\ul\insrsid13505809\charrsid7346511 Nirmal Singh Vs Ram Singh }{\insrsid13505809\charrsid7346511 (1961) EA 168 does not appear to me to be helpful, as it is concerned with misjoinder as plaintiff of a person held to have no capacity to sue. However taking leaf from authorities in other jurisdictions having similar, and even identical rules of procedure, I would }{\insrsid7101426\charrsid7346511 summarize}{\insrsid13505809\charrsid7346511 the position as follows: For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit would legally affect the interests of t hat person, and that it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit. Alternatively, a person qualifies, (on application of a defendant) to be joined as a co -defendant, where it is shown that the defendant cannot effectually set up a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person. (See }{\i\ul\insrsid13505809\charrsid7346511 Mulla }{ \i\ul\insrsid7101426\charrsid7346511 on}{\i\ul\insrsid13505809\charrsid7346511 the Code of Civil Procedure }{\insrsid13505809\charrsid7346511 (of India}{\insrsid7101426 ) 1}{\b\insrsid13505809\charrsid7346511 4th }{\insrsid13505809\charrsid7346511 Ed. By J. M. Shelat, Vol.11 pp. 858 and 864 \emdash 5; and }{\b\i\ul\insrsid13505809\charrsid7346511 Amon }{\b\i\ul\insrsid7101426\charrsid7346511 vs.}{\b\i\ul\insrsid13505809\charrsid7346511 Raphael Tuck & Sons }{\i\insrsid13505809\charrsid7346511 Ltd. }{\insrsid13505809\charrsid7346511 (1956) 1 All ER 273 at p.290). \line }{\insrsid7101426 \par }{\insrsid13505809\charrsid7346511 For my part I would hesitate to take amiss a strategy, by counsel on the same side of the divide in the litigation forum, for joining hands and }{\insrsid7101426\charrsid7346511 utilizing}{ \insrsid13505809\charrsid7346511 together all lawful argument, to not only advance their clients\rquote cases, but also to defeat the case of their common adversary. In the instant case however what was submitted by counsel for the co-defendants both in the High Court and in t he Court of Appeal, on the contention that Jaffer Brothers Ltd., had no cause of action, was relevant, material, and of direct benefit only to Mohamed M. Bagalaaliwo\rquote s defence. It did not advance what could have been the case of the Custodian Board and Att orney General that their presence in the suit was not necessary. Accordingly when the Court of Appeal came to decide the issues before it, the question as to whether the Custodian Board should continue to be co-defendant was not among the issues for deter m ination. The Court of Appeal, therefore, could not have dismissed the appeal, let alone the suit, as against the Custodian Board. It follows that under the general rule that costs follow the event, Jaffer Brothers Ltd. as the only successful party had to be awarded costs of the appeal, to be paid by the unsuccessful parties who opposed the appeal. It also follows that the orders of the trial court, except the order for joining the co-defendants, (which was not in issue)}{\insrsid7101426\charrsid7346511 , had}{\insrsid13505809\charrsid7346511 to be set aside. \line }{\insrsid7101426 \par }{\insrsid13505809\charrsid7346511 My second obser vation is related to the course adopted by the original defendant to seek redress in form of damages/compensation by way of counter-claim against co-defendants. For obvious reasons I must refrain from pre-emptive comments. Suffice to say that it has resul ted into}{\insrsid7101426 }{\insrsid7101426\charrsid7346511 unorthodox}{\insrsid13505809\charrsid7346511 complexities in the pleadings, which may have been avoided by filing a separate suit, if seeking redress by way of indemnity through third party proceedings was inappropriate. \line }{\insrsid7101426 \par }{\insrsid13505809\charrsid7346511 I concur in the order proposed by Kanyeihamba, J. S. C. \par }{\insrsid7101426 Dated at Mengo this 27}{\super\insrsid7101426\charrsid7101426 th}{\insrsid7101426 day of May 1999. \par }{\insrsid13505809\charrsid7346511 J. N. MULENGA, \line }{\ul\insrsid13505809\charrsid7346511 JUSTICE OF THE SUPREME COURT }{\insrsid13505809\charrsid7346511 \par }{\insrsid7101426 \par \par \par \par }{\insrsid396093 \par \par \par \par \par \par \par \par }{\b\ul\insrsid396093 JUDGEMENT OF ODER, J. S. C. \par }{\insrsid396093 I have had the benefit of reading in draft the judgment of Kanyeihamba, J. S. C. I agree with his conclusions and the reasons. The appeal should be dismissed. I also agree with the orders proposed by him. \par Since Karokora, J. S. C; Mulenga, J. S. C and Kikonyogo, J. S. C. also agree there will be an order in those terms. \par Dated at Mengo this 27}{\super\insrsid396093\charrsid396093 th}{\insrsid396093 day of May 1999. \par A. H. O. Oder \par }{\b\ul\insrsid396093 JUSTICE OF THE SUPREME COURT.}{\b\ul\insrsid396093\charrsid396093 \par }{\insrsid7101426 \par \par \par \par \par \par \par \par }{\ul\insrsid13505809\charrsid7346511 JUDGMENT OF MUKASA KIKONYOGO, J. S. C. }{\insrsid13505809\charrsid7346511 \line }{\insrsid7101426 \par }{\insrsid13505809\charrsid7346511 I have had the advantage of reading the draft of the leading judg}{\insrsid7101426 ment prepared by Kanyeihamba, J.}{\insrsid13505809\charrsid7346511 S. C. I agree with the reasons he gave for the con clusion he reached. I have}{\insrsid396093 nothing useful to add. \line \par L. E. Mukasa}{\insrsid13505809\charrsid7346511 -Kikonyogo \line }{\ul\insrsid13505809\charrsid7346511 Justice of the Supreme Court }{\insrsid13505809\charrsid7346511 \par }\pard\plain \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid7346511 \fs24\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\lang1033\langfe1033\langnp1033\insrsid10825639\charrsid7346511 \par }}