N v Uganda Enterprises Ltd (Civil Appeal No. 26 of 1998) [1998] UGCA 57 (10 June 1998)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPEAL NO. 26 OF 1998

APPELLANT NPART ....................................

#### VERSUS

KAGADU ENTERPRISES LTD....................................

(Appeal from a Ruling of the High Court of Uganda at Kampala (Mr. Justice Akiiki-Kiiza) dated 10/6/98 in Misc. Appl. No.394 of 1998)

CORAM: HON. MR. JUSTICE S. T. MANYINDO, DCJ HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. B. N. KITUMBA, JA

## JUDGMENT OF KITUMBA, JA

I have had the advantage of reading the judgments in draft of my Lords Manyindo, DCJ. and Twinomujuni, J. A. I agree entirely with them especially that article $139$ (1) of the 1995 Constitution of Uganda gives unlimited original jurisdiction to the High Court which cannot be ousted by any other law.

I agree with all the orders proposed by them.

Dated at Kampala this Simma day of Novel 1999

Cres, Ditumber. C. B. N. KITUMBA JUSTICE OF APPEAL

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THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

# CIVIL APPEAL NO. 26 OF 1998

NPART....................................

#### **VERSUS**

KAGADU ENTERPRISES LTD....................................

(Appeal from a (Ruling of the High Court of Uganda at Kampala Mr. Justice Akiiki-Kiiza Ag. Judge) dated 10/6/98 in Misc. Appl. No. 394 of 1998)

CORAM: HON. MR. JUSTICE S. T. MANYINDO, DCJ HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. MR. JUSTICE C. B. N. KITUMBA, JA

# JUDGMENT OF MANYINDO, DCJ

This is an appeal against the Ruling of the High Court (Akiiki-Kiiza, J) delivered on 10/6/98 in an application by the appellant, for an order striking out the respondent's suit (H. C. C. S. No.272 of 1998). I will touch on the facts very briefly as they have been fully set out in the judgment of Twinomujuni JA with which I agree. In that suit the respondent sued the appellant together with the Uganda Commercial Bank for special and general damages, an order for specific performance and an injunction, all arising from a loan transaction between the Uganda Commercial Bank and the respondent. The Non-performing Assets Recovery Trust (NPART)

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became involved in the suit because the cause of action in the suit was said to relate to a non-performing asset within the terms of the Non-performing Assets Recovery Trust Statute (No.11 of 1994).

The appellant's contention in their application before the High Court was that that court had no jurisdiction to entertain the respondent's suit against the appellant and the Uganda Commercial Bank because under section 16(1) of the Non Performing Assets Recovery Trust Statute, jurisdiction lay exclusively with the Non. Performing Assets Recovery Tribunal.

The trial Judge did not agree. He held that section 16(1) of the NPART Statute did not expressly oust the jurisdiction of the High Court. He further held that in any event, any law that purported to oust the jurisdiction of the High Court would contravene Article 139(1) of the Constitution of Uganda and section 16(1) of the Judicature Statute (No. 13 of 1996) which confer upon the High Court unlimited jurisdiction in all matters. The learned Judge was of the view that the Tribunal is just an alternative forum to the High Court. He accordingly dismissed the appellant's application with costs to the respondent. Hence this appeal, on four grounds, which have been set out in the judgment of Twinomujuni JA.

Ms. Irene Mulyagonja who brought this appeal on behalf of the appellant, argued grounds 1 and 3 together. She contended that the High Court has no jurisdiction in the matter as section $16(1)$ of the NPART Statute clearly excuses all other courts. She submitted that the reason for that is not hard to find because the intention of the legislature,

as can be discerned for the long title to the NPART Statute, was to put in place an "expeditious machinery for the eventual recovery of certain loans and investments" made by the Uganda Commercial Bank. That necessitated the exclusion of other fora in favour of the Tribunal as the sole forum for settling the disputes under the NPART Statute, with a right of appeal to the Court of Appeal.

Arguing grounds 2 and 4 together, the learned counsel submitted that it is not true that the jurisdiction of the High Court is subject only to the constitution - it is also subject to any other law. Therefore, she argued, the NPART Statute which ousts the jurisdiction of the High Court, does not contravene the Constitution or the Judicature Statute.

Mr. Ayena who represented the respondent contended that the NPART Statute has not expressly or by inference removed the jurisdiction of the High Court which is given to it by the Constitution and the Judicature Statute. In the alternative, he submitted that the suit was not for the recovery of a Uganda Commercial Bank's outstanding loan but that it was an ordinary suit against the Uganda Commercial Bank and NPART & for a breach committed by the Uganda Commercial Bank in failing to honour a loan facility granted to the respondent. The suit sought an order prohibiting the appellant from selling the respondent's property purportedly under the loan arrangement or agreement and for specific performance of the loan facility. In his view such a matter does not fall under the NPAR Tribunal. It has to be taken to the High Court. This was not a matter of recovery of a Uganda Commercial Bank loan and so

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**MENT CENTRA**

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NPART which had taken over Uganda Commercial Bank's role a recovery of loans had no role to play in the matter. Therefore as the matter did not arise under the NPART Statute, the question of exclusive jurisdiction lying with the Tribunal did not arise.

I cannot see how the respondent's suit can be said to be on a matter arising from the NPART Statute or related to a non-performing asset in view of the clear pleadings which relate to an ordinary suit for breach of contract and specific performance. The matter cannot therefore fall under section $16(1)$ of the NPART Statute which states:

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(1) The Tribunal shall have exclusive jurisdiction to hear and determine all matters arising under this Statute or relating to any non performing asset transferred to the Trust under this Statute.

(2) For the avoidance of doubt, the jurisdiction of the Tribunal does not include the trial of any criminal offence.

(3) The Tribunal shall, in the exercise of its jurisdiction under this Statute have all the powers of the High Court and for that purpose, the civil procedure rules applicable to a civil action before the High Court shall, with the necessary modifications apply to proceedings before the Tribunal."

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Assuming that the matter fell under that Statue, does the provision in section 16 (1) of that Statute exclude the ordinary Courts and in particular the High Court from handling such a matter? In the Concise Oxford Dictionary of Current English, 5<sup>th</sup> Edition, the word "exclusive" is defined as

"shutting out; not admitting of; desirous of excluding others.... Excluding all but what is specified."

On the face of it, it would appear that the provision in S. $16(1)$ of the NPART Statute excludes all other for afrom handling matters falling under the NPART Statute. But it must be remembered that that Statute was enacted in 1994, a year before the present Constitution of Uganda was put in place. The Constitution is the Supreme law of this country. Article 139 (1) of the Constitution provides as follows:

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"139 (1) The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law."

The same provision is repeated, word for word, in section $16(1)$ of the Judicature Act, 1996. It is plain from those two provisions that unlike other Courts, the High Court enjoys unlimited original jurisdiction in all matters. But it does not enjoy unlimited appellate and other jurisdiction. In my opinion what has been bestowed by the Constitution cannot be taken away by any other law. It follows that when read together with Article 139 of the Constitution and Section 16 (1) of the Judicature Statute, the provision in section $16(1)$ of the NPART Statute can only exclude courts other than the High Court. The trial Judge was therefore right to hold that both the Tribunal and the High Court have jurisdiction in the matter. They enjoy DETRICOPTION OF LIDSON RANDORN ACC TO TAXABLE PARTY. concurrent jurisdiction. CLASS NO.

The trial Judge did also hold, relying on David Kayondo v The Cooperative Bank (U) Ltd, Civil Appeal No. 10 of 1991, Supreme Court (unreported), that for a Statute to oust the original jurisdiction of the High Court it must say so expressly which was not the case in the instant case. Kayondo was decided on the basis of Article 83(1) of the 1967 Constitution which provided thus:

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$"83$ There shall be a High Court for Uganda, which $(1)$ shall have unlimited jurisdiction throughout Uganda subject to the provisions of this Constitution and of any law enacted by Parliament."

AW DEVELOPMENT CENT.

**LIBRARY**

It can be argued that while that provision permitted of Parliament enacting a law limiting the original jurisdiction of the High court, the provision in Article 139 of the 1995 Constitution does not permit such action. I would therefore be reluctant to apply Kayondo to the present case.

In view of the foregoing, I would dismiss the appeal with costs to the respondent and as Kitumba JA also agrees it is so ordered.

DATED at Kampala this St. day of Moved 1999 raymdo CLASS NO... S. T. MANYINDO DEPUTY CHIEF JUSTICE