In The matter Of Application For an Order Of Certiorari and or Prohibition By Mustapha (Miscellaneous Application 230 of 1996) [1996] UGHC 68 (21 May 1996)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## MISC. APPLICATION NO. 230/96/

55 AND 36 OF THE JUDICATURE ACT. IN THE MATTER OF SECTIONS 34. 1967.

AND

IN THE MATTER OF AN APPLICATION BY MUSTAPHA RAMATHAN FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI AND/OR PROHIBITION.

# BEFORE:THE HON. MR, AG. JUSTICE V. F. MUSOKE KIBUUKA

#### RULING.

This i s an ex-parte application based 35 and 36 of the jurisdiction Act. 1967. It is brought by chamber **suiaons** under rule 3 [21 of the Law Reform [Miscellaneous Provisions] [Rules of Court] Rules. S. 1. 74-1. on section 34.

As i s required by sub-rule [21 of rule 3 of t he Law Re f orbi (Mi see 11aneous Provis ions) (Rules of Cour t*)* Rules. the application is accompanied by a statement signed by the applicant Mr. Mustapha Ramathan. sett ing out the name and description of the appli cant. the reliefs sought and the grounds upon which those reliefs are being sought. The applica t i on i s also accompanied by an affidavit sworn by Mr. Mustapha Ramathan. The affidavit verifies the grounds upon which the applicant relies.

The facts leading t o this appli ca t i on are that Mr. Mus t apha Rama than. the applicant. and a former Minister in the government of Uganda. on 8th November. 1974. wa s reg i st ered. vide Land Registration Inst rumen t No. 194704. as the proprietor of the property comprising. L. R. V. 558 Folio 2 Plot 5, Mackenzie Vale. in the city of Kampala. Mr. Ramathan purchased the property for

value froi the Departed Asian Custodian Board which becaie the 1972. After the enactment of the Expropriated Properties Act, 1892, Act No. 9 of 1982, the property was successfully claimed. the former owner who i s the third respondent t o this appiica t ion, by the Hon. Mini s t er of Finance on 16th October, 1995. Consequently, the former owner, Mr. Tajdin Alidina Valimohamed, got registered as proprietor of 1995. It appear s the 25th April, 1996, when this application was filed, the applicant wa s still in physical possession of the property. registered proprietor after the expulsion of the former owner in that up to A repossession order was issued to the property on 3rd November,

Mr. Rama than wa s never compens a t ed for the loss of hi s propr i e t ary interes t in the proper t y in que s t i on by the government of Uganda. He claims that his constitutional rights were infringed by the Hon. Minister of Finance when he repos se s s i on cer t i f ica te wi thout according t o him pr i or compensa t ion. signed a

If leave i s grant ed, through, this application. the applicant int ends to invoke the prerogative jurisdiction of this cour t f or: -

- la] an order of cer t i orar i to be di rec t ed against the Honourable Minister of Finance and Economic Planning. - IbJ an order of cer t iorar i/and or prohi bit i on t o i s sue agains t t he Ch i e f Re g i s t r a r of Ti t les or a s i s now lately know. the commissioner for Land Registration;

- [c] an order of pr ohi bi t ion to is sue against t he third respondent , Mr. Ta j d i n Alidina Vai iiohaied. Prohibiting him from taking vacan t possession of the proper t y cont ained in LRV 155 Fo 1 i o 2 plot 5. Mackenzie Vale, Kampala; and - Id] In this application the applicant also prays for a temporary injunction restraining the 3rd respondent, Mr. Tajdin Alidina Valimohamed from trespassing on, claiming proprietary ownership of the property until the final disposal of the application for cer t iorari and *I* or prohi bi ti on. interfering with or otherwise taking physical possession of the subject matter or asserting or

Of course 1 must remain conscious of the important fact that this is merely an application for leave to apply for those prerogative orders of certiorari and prohibition. I must avoid digressing into the rehelm of the mer its for their granting which i s no t required for the purposes of determining this application.

Leave is being sought for the applicant of certiorari against P1ann i ng. According to both subsection 161 of section 34 of the Judica ture Ac t and rule 4 of t he Law reform {. Miscell aneous provi s i ons J LRules of Cour t] Ru les [S.1.74-1] be grant ed to apply for an order of cer t i or ar i unless t he application is made not later than six months after the date of the Hon. Minister of Finance and Economic to apply for the order leave cannot

the proceeding or such shorter period as may be prescribed by any Act of Parliament.

Since the wording in both subsection [6] of section 34 of the judicature Act and in rule 4 of the Law Reform [Miscellaneous provisions! [Rules of Court] Rules, is exactly the same, for greater clarity and easier reference, I will only reproduce subsection 6 of section 34 of the Judicature Act which reads as follows.

## $-34$ ---------

$\mathbf{1}$

[6] In the case of an application for an order of certiorari to remove any judgment, order, decree. conviction or other proceeding, for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not less than six months after the date of the proceedings or such shorter period as may be prescribed under any Act; and where the proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired".

In the instant application, leave is being sought to enable the applicant to apply for an order of certiorari to remove the order of repossession of plot 5, Mackenzie Vale made by the Hon. Minister of Fiance and Economic Planning, the first respondent, for the purpose of its being quashed. According to paragraph

**o** eleven of the Af f idavi t of the applicant, Mr . Rana than. the is suing the repossession order and cer t i f ica te, by the Hon. Minister of Finance and Economic Planning, took, place on the 16th day of October, 1995. This application for leave t o apply for the order of certiorari against filed on the 25th day of April, 1996. The statutory six months required under subsection [6] of section 34 of the judicature Act and of the Law Reform LMisee 11aneous Provisions] (Rules of Court] Rules. and within which the application for such leave must be made had by that time already expired having expired on 16 th April, 1996. proceedings of the Hon. Minister was

> Since the provisions of subsec t ion 16 J of sec t i on 34 of the Judicature Act and of rule 4 of [Mi seel 1aneous Provi s i ons1 [Rules of Court] Rules, are mandatory, this cour t canno t grant the applicant leave to apply for the order of certiorari to issue against the Hon. Minister of Finance and Economic Planning in this ma t ter• The application for leave is caught by the period of limitation. See Re An application by Even though the decision is that of the High Court of Kenya, i t Gideon Wawern Gatunguri [1962] E. A. 520, a dec i s i on on the po i n t. the Law Reform is of high persuasive value to this court. in my view.

> well known rule of practice that the prerogative jurisdiction of ordinari1y be invoked where a Section 14 of the Expropriated properties Act, 1982, provides that any person who i s aggrieved by the decision of the Minister may appeal t o statutory remedy by way of appeal Secondly it i s a the court cannot i s avai1 able.

the High Court for appropriate redress.

That is a statutory right of appeal which the present applicant can avail himself of. The tiie for lodging the appeal May have expired but that does no t preclude the applicant from applying for leave t o appeal out of t iie. In the case of Re An Application by The Attorney General of Tanganyika [1958 E,A, 482, the Attorney General of Tanganyika made an application seeking leave to apply for the of mandamus to i s sue against a magistrate at Nakuru in Kenya to have stated. In t ha t case, section 370 of the Criminal procedure Code entitled the applicant to apply to the Supreme Court of Kenya, calling upon the Magistrate to show cause why a case should not be stated. The court held that the application for mandamus was misconceived since the prerogative jurisdiction of the court could not be invoked so long as a statutory remedy by way of appeal was avai1 able. In Kantibhai Aryat Kantitbhai Maribha Patel vs The Minister of Finance *&* Economic Planning Miscellaneous Application No. 75 of 1994, [unrepor ted] this court rejected the applicant's application for leave to apply for a writ of mandamus owing to the fact that sec tion 14 of the expropriated properties Ac t. 1982. provided the remedy of appeal t o this court against the decision of the Hon. Minist er of Finance refusing to grant a possession order to the applicant. The position of the applicant in Kintibha Aryat Kantibhai Maribhai v s. The Minister of Finance [supra] is not di f feren t from the position of the applicant in the instant application. a case

In the circumstances, therefore, I find that his application is misconceived in as far as it relates to leave for applying for the writ of certiorari against the Hon. Minister of Finance.

The applicant also prays for leave to apply for certiorari and or prohibition against the commissioner of Land Registration.

I do not think that the writs of certiorari and prohibition are applicable in this case in relation to the commissioner of land Registration on the facts as they appear in the statement and the Affidavit of the applicant. The Commissioner did not take any decision in any proceeding. The Commissioner simply followed the provisions of paragraph [a] section 6 of the Expropriated properties Act, 1982 which provide that a certificate of repossession is sufficient authority for the Chief Registrar to transfer the title to the former owner. The commissioner. therefore, has no decision to make, in the strict sense, apart from following the provisions of the law once the certificate is presented to him.

Even here, I think the proper remedy lies within the provisions of section 185 of the Registration of Titles Act, whereby, if the applicant appealed under section 14 of the Expropriated properties Act, he may apply to have the register of titles rectified by removing the name of the third respondent from the register of titles. The remedy does not lie in this court calling for the register of titles to quash the registration of the third respondent and replacing it with the name of the

$\mathbf{1}$

applicant through the writ of certiorari.

Wi th regard to t he pr ayer f or leave t o apply f or of prohibition against the commissioner of land Registration, Mr. Mbabazi explained t ha t t he prayer wa s in t he a 1 t erna t i ve. He With respect, 1 disagree. 1 my humble understanding of the prerogative writ of prohibition. 1 do not a s a prevent ive remedy and not a s a correc t i ve remedy like certiorari or mandamus. Those two prerogative writs may i s sue a f ter t he fact complained about has taken place in Prohi bi t ion *9* on the other hand, excep t where t he ac t comp1ained of i s con t inuous would be irrelevant after t he ac t i s complete because t here would be nothing to prohibit. this case. very nature know it, by its order to correct the situation. also argued that the writ of prohibition would be appropriate in

The facts, a s ver i fied by the appllean t, indica te that t he commissioner of Land Registration registered the third respondent a s the registered proprietor of plot No. 5 Mackenzie Vale, on the 3rd day of November, 1995 , under registrati on ins t rumen t No. 275193. The transaction of registration wa s completed on t he s ame day and i t i s since all over . Now, wha t will the wri t of prohibition serve if leave is granted? what is there to prohi bit or to prevent with the writ of prohibition after the name of t he third respondent has long been entered on the register of titles?

Similarly, there f ore, i t would not, in my view, be appropriate to grant leave to the applicant to apply for either the writ of

cer t iorar i or prohi bi t ion against t he coni s s i oner of 1 and Registration on the presented in this application. facts as

The third pr ayer in this application relates to leave t o the applicant t o apply for the of prohi bi t ion agains t Mr. Tajadin alidina Valimohamed, the third respondent prohibiting him possession of the property contained in LRV 5 5 8 *9* Fo lio 2 plot 5> Mackenzie Vale. Since the third responden t has been the registered proprietor of the proper ty s ince 3rd November • 1995. legally, he has been in constructive possession since then. In any case, 1 think this leave being granted to the applicant to apply for the writ of cert i or ar i against t he Hon. Minister of Finance and Economic Planning to quash the order for repossession of the property. I think that leave to apply for the writ of prohibition against the third respondent prohibiting him from taking possession of the proper t y of which he i s the regi s tered propr ietor, and wi thout any legal measure in place t o alter t he question of from taking vacant prayer was dependent upon ownership, would be meaningless.

In t he s ame vain, the temporary injunction the applicant ha s prayed for cannot be granted since the presumption that leave for the application for the writs of certiorari and prohibition would be granted and the interlocutory to preserve quo until the appli ca t ion and final de tenina ti on of t he application for the writs of certiorari and prohibition. the pray for it was based on t he status injunction, if granted, would only serve

In the result t therefore, this application i s dismissed the than the prerogative writs for whose application leave was sought in this application. applicant nay, if he wishes, proceed to seek, other remedies other

V. F. ^tTSDKE\*2lBUUKA

AG. JUDGE,

21/5/96.