LAND LAW CASES

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Jordan v May and Another

Emergency Legislation – Requisition of land – Damage to land –

Protection against breach of covenant to repair – “Land” – Electric plant
– Storage battery
– Landlord and Tenant (Requisitioned Land) Act, 1944, (c 5), s 1(1).

The plaintiff demised to the defendants certain premises which

included a shed containing an electricity generating plant. The plant
consisted of an engine
which was sunk in concrete and batteries which were set out on a
table in the shed and connected by wires to the engine and the circuit.
The lease included a
repairing covenant in respect of the premises and plant. In 1943 part
of the premises, with the “brick and corrugated iron engine shed”
which housed the plant
in question, were requisitioned under the Defence (General)
Regulations, 1939. The plaintiff claimed damages for breach of
covenant to repair in respect of
the plant. On behalf of the defendants it was contended that the plant
was a “fixture,” and, therefore, “land” within the meaning of the
Landlord and Tenant
(Requisitioned) Land) Act, 1944, s 1(1), and he claimed the protection
of that sub-section. The county court judge decided that the engine
was a fixture, and,
therefore, part of the land for the purposes of s 1(1), but that the
batteries were not fixtures, and he awarded damages in respect of the
disrepair of the batteries.
On appeal:—
Held – There was evidence before the judge that the batteries were not
an essential and integral part of the electricity generating plant and
the judge was
entitled to find that they were not fixtures.

Webb v Frank Bevis Ltd

Landlord and Tenant – Fixtures – Trade fixtures – Mode of annexation –

Corrugated iron shed erected upon concrete floor – Superstructure
removable
without material injury – Whether concrete foundation and
superstructure single unit.

The appellant company was in occupation of part of land held by the

respondent on lease from the War Office. The respondent had
covenanted that he would,
at the end of his term, at his own expense remove all buildings and
erections and restore the land to its original state. The appellant
company carried on
business as manufacturers of breeze and cement products, and, for
the purpose of housing their machinery and warehousing their plant
and materials, they erected on the land a shed 135 ft long and 50 ft
wide. It was built of corrugated iron, and was laid upon a concrete
floor. The roof rested upon solid timber posts, which in turn rested on
the concrete floor, but they were not embedded in it. Each post was
tied to the concrete floor by wrought iron straps on the opposite sides,
and was held in position by a bolt which ran horizontally through
each post. The straps, which were fixed in and protruded from the
concrete floor, were fastened tightly by a nut screwed on one end of
the bolt. There 􀂭 247􀀉 was no other attachment to the soil. In the
shed, there were three heavy pieces of machinery similarly attached to
the concrete floor. Once the roof and sides of the shed had been
removed (and these could be removed in panels), the posts could
easily be removed by undoing the bolts, and, if need be, the
upstanding straps could be cut off level with the floor. It was
contended by the respondent that the superstructure of the shed
must be regarded as one with the concrete floor and as constituting a
single unit affixed to the soil, and, consequently, that it was a
landlord’s, and not a tenant’s, fixture:—

Held – the superstructure and the concrete floor were not a single
unit, and the superstructure was removable by the tenant.
Notes
The attachment of buildings to a concrete base has become such a
usual feature of construction in recent times, that this decision is of
the highest practical importance. At the same time, it is necessary to
be on one’s guard as to the precise extent of the decision. It would
probably be wrong to say that in all cases a concrete foundation can
be regarded as a separate unit from the superstructure, and decisions
dealing with fixtures are always very much dependent upon the
particular facts and circumstances of each case. It is, however, now
safe to say that the foundation and the superstructure are not
necessarily one unit. As to the superstructure, it must be noted that it
must be removable without losing its identity. If it can only be
removed by separation into its component boards or bricks or
whatever it is made of, that is said not to be removal as a fixture; but
it is sufficient, apparently, that a wooden structure is removable in
panels. Here, again, the question will be decided very largely upon the
particular facts of each case. For these reasons, the case of Smith v
City Petroleum Co Ltd, p 260, post, is of interest as being the
application of these principles to the case of petrol pumps and tanks,
which is the form in which this problem is most commonly presented
at the present time.

Bernstein v Skyviews & General Ltd [1977] EWHC QB 1 High

Court

The defendant company took aerial photographs of properties and

offered to sell them to the owners of the properties in the photos. The
claimant owned Coppings Farm in Kent and complained that the
photographs were taken without his consent, was an invasion of his
privacy and had been obtained by trespassing onto his airspace. He
demanded the negatives should be handed over to him or destroyed.

Held:

There was no trespass. A landowner only has rights in the airspace to

such a height as is necessary for ordinary use and enjoyment of the
land. Even if there was an action for trespass, this would not provide
a remedy in relation to the photos as there was no law against taking
a photograph. The taking of a photograph could not turn an act which
was not trespass into trespass.

Griffiths J:

If the latin maxim (Cujus est solum, ejus est usque ad coelum et ad
inferos– whoever owns the soil it is theirs up to heaven and down to
hell) were applied literally it would lead to the absurdity of trespass
being committed every time a satellite passed over a suburban
garden. The best way to strike that balance in our present society was
to restrict the rights of an owner in the airspace above his land to
such height as was necessary for the ordinary use and enjoyment of
his land and the structures upon it, and to declare that above that
height he had no greater rights in the airspace than any other
member of the public.

Kelsen v Imperial Tobacco Co (of Great Britain and Northern

Ireland) Ltd: 1957
July 28, 2016 dls 0 Estoppel, Torts - Other,

References: [1957] 2 QB 344, [1957] 2 All ER 343

Coram: McNair J

Ratio: By an assignment in April 1946, the plaintiff acquired the lease

of a shop and it tobacconist’s business. The premises were on a street
with a ground floor room and a flat roof top. On the two front sides
the shop was bounded by streets and on one side of the back was an
adjoining building of three stories. During the lease, the defendants,
wholesale tobacconists, displayed three advertising signs on the wall
with the adjoining building about the shop. The signs made of sheet
metal mounted on a frame which fixed against the wall but with the
mounting, it extended by 4 inches into the air space above the flat
roof of the shop. In April 1948 the landlords gave to the owners of the
adjoining building consent to a large new sign in place of the existing
signs. In December 1948, the landlords granted a new lease of the
shop to the plaintiff. By clause 1 of the lease, which contained the
parcels, the premises devised to the plaintiff were expressed to be
subject to ‘all that right so ds wants to any of the adjacent property,
and by clause 2 the plaintiff covenanted not to permit any sign or
advertisement to be posted on or over any part of the exterior at the
shop and premises. In January 1950, no new sign having yet been
affixed on the adjoining building, its owners again obtained the
permission of the landlord of the plaintiffs shop for the defendants to
substitute a new large advertising sign for the existing the smaller
ones. A new sign was elected by the defendants in 1950 with the
plaintiff’s knowledge. Its total length was about 20 feet, and the
maximum distance by which part of the sign projected from the wall
and over the building was 8 inches. From time to time the defendants
servants had access to the sign, from the plaintiff’s shop and with his
knowledge, to carry out maintenance work and repairs. In December
1953 as a result of a business dispute between the plaintiff and the
defendants, the plaintiffs asked the defendants to remove the sign.
After the dispute was settled, the plaintiff on being asked by the
descendants whether he still wanted the side removed, replied that it
could remain. Further arose between the parties, and the plaintiff
gave notice to the defendant to remove the sign, and the defendants
having failed to do so now brought an action against them for
trespass.

Held: McNair J granted a mandatory injunction ordering the

defendants to remove a sign which projected only 8 ft over the
plaintiff’s property.
1 the air space above the shop was part of the premises demised to
the plaintiff on a true construction of the lease of December 1948
there was nothing to displace the prima facie conclusion that the
demise of the premises included the air space above the shop; 2 when
in January 1950, the landlords consented to the substitution of the
new sign, they could not derogate from the demise of the airspace in
December 1948 to the plaintiff; 3 the plaintiffs conduct in allowing the
sign to remain on the wall of the adjoining building from 1950
onwards did not estop him from subsequently requiring it to be
removed, because a be hard, as most, mary represented to the
defendants but he would not object to the sign in future and
representation of an intention did not give rise to an estoppel; and on
the facts, the descendants had not been induced by the plantiff’s
conduct to act to their prejudice to such an extent as to oblige them to
continue to display the sign: 4 The invasion of the plaintiff’s air-space
by the sign amounted to a trespass on the part of the defendants and
not merely to a nuisance. On the facts of the case, although the injury
to the plaintiffs legal rights was small, he was entitled to a mandatory
injunction requiring the defendants to remove that sign.

Holland v Hodgson (1872) LR 7 CP 328

The owner of a mill purchased some looms for use in his mill. They
were attached to the stone floor by nails driven into wooden beams.
They could quite easily be removed. The owner then mortgaged the
mill and failed to keep up the payments and the mill was repossessed.
The question for the court was whether the looms were fixtures
forming part of the land or whether they remained chattels.

Held:

The looms had become fixtures and thus formed part of the land
mortgaged.

Blackburn J introduced the degree and object of annexation test: “ an

article which is affixed to the land even slightly is to be considered as
part of the land, unless the circumstances are such as to shew that it
was intended to all along continue a chattel, the onus lying on those
who contend that it is a chattel.”

Under this test, the question to be asked is whether the chattel was
attached to the land to enable the object to be better enjoyed as a
chattel, or for the more convenient use of the land.

Blackburn J on the object of annexation:

"Thus blocks of stone placed one on the top of another without any
mortar or cement for the purpose of forming a dry stone wall would
become part of the land, though the same stones, if deposited in a
builder's yard and for convenience sake stacked on the top of each
other in the form of a wall, would remain chattels."

D'Eyncourt v Gregory (1866) LR 3 Eq 382

The court was required to determine if some tapestries, some

ornamental statues of lions in the hall, staircase and gardens, some
vases resting in nitches and stone garden seats were fixtures or
chattels.

Held:

The tapestries were fixtures as they were integral to the decoration of

the room where they attached as wallpaper or frescos. The statue of
lions, the garden seats and vases were also fixtures as they formed
part of the overall architectural design.

Lord Romilly MR:

"I think it does not depend on whether any cement is used for fixing
these articles, or whether they rest on their own weight, but upon
this--whether they are strictly and properly part of the architectural
design for the hall and staircase itself and put in there as such, as
distinguished from mere ornaments to be afterwards added."

Leigh v Taylor [1902] AC 157

Madame de Falbe was the tenant for life of a mansion. She had placed
some valuable tapestries in the mansion which were stretched on to
hard match board and affixed to the walls by nails. They could be
removed with slight disturbance to the walls. On Madame de Falbe’s
death, the court were required to determine whether the tapestries
had become fixtures belonging to the mansion or whether they
remained chattels.

Held:

The tapestries remained chattels and did not form part of the
mansion.

Earl of Halsbury LC:

“It never was intended to remain a part of the house; the contrary is
evident from the very nature of the attachment, the extent and degree
of which was as slight as the nature of the thing attached would admit
of. Therefore, I come to the conclusion that this thing, put up for
ornamentation and for the enjoyment of the person while occupying
the house, is not under such circumstances as these part of the
house. That is the problem one has to solve in each of these cases. If
it is not part of the house, it falls under the rule now laid down for
some centuries, that it is a sort of ornamental fixture, and can be
removed by whoever has the right to the chattel - whose it was when it
was originally put up.”

Lyon & Co v London City and Midland Bank [1903] 2 KB 135

The claimants hired out some seating to Mr Brammall for use in his
cinema for a period of 12 weeks. The terms of the contract granted an
option to purchase the chairs but this option was never exercised.
The local authority required the seating in the cinema to be fastened
to the floor and therefore Mr Brammall fixed the chairs to the floor
with screws. Mr Brammall then mortgaged the cinema to the
defendant bank and defaulted on payments. The defendants took
possession of the cinema and the claimant brought an action for
delivery up of the seating and damages for their wrongful detention.
The defendants argued that the seating had become fixtures and
therefore title had passed to them.

Held:

The chairs were chattels

Joyce J:

“No doubt a chattel on being attached to the soil or to a building

prima facie becomes a fixture, but the presumption may be rebutted
by showing that the annexation is incomplete, so that the chattel can
be easily removed without injury to itself or to the premises to which it
is attached, and that the annexation is merely for a temporary
purpose and for the more complete enjoyment and use of the chattel
as a chattel…. These chairs did not cease to be chattels on being
screwed to the floor and the property in them did not pass to the
defendants.”

Vaudeville Electric Cinema v Muriset [1923] 2 Ch 74

Cinema chairs attached to the floor of the cinema by screws were held
to constitute fixtures despite the fact they could be easily removed
without too much damage. They had been affixed in order to become a
permanent feature and to enable the building to be better enjoyed as a
cinema. Ownership of the chairs thus passed to the bank when the
claimant defaulted on their mortgage payments.

Elitestone v Morris [1997] 1 WLR 687 House of Lords

Elitestone purchased the freehold to the land on which Mr Morris’s

bungalow (and 26 others)was situated. Elitesone wished to demolish
the properties on the land with a view to redevelopment. Elitestone
brought proceeding against all the residence seeking possession of the
land. Mr Morris defended the action claiming protection under the
Rent Acts. The Rent Act would only protect Mr Morris if the bungalow
formed part of the realty. Elitestone argued that the bungalow was
separate from the land since it rested on its own weight on concrete
pillars and was not physically attached to the land.

Held:

Considering both the degree of annexation and object of annexation

(Holland v Hodgson) the bungalow formed part of the realty.

Lord Lloyd:

“In the case of the house the answer is as much a matter of common
sense as precise analysis. A house which is constructed in such a way
so as to be removable, whether as a unit, or in sections, may well
remain a chattel, even though it is connected temporarily to mains
services such as water and electricity. But a house which is
constructed in such a way that it cannot be removed at all, save by
destruction, cannot have been intended to remain as a chattel. It
must have been intended to form part of the realty…. I do not doubt
that when Mr. Morris' bungalow was built, and as each of the timber
frame walls were placed in position, they all became part of the
structure, which was itself part and parcel of the land. The object of
bringing the individual bits of wood onto the site seems to be so clear
that the absence of any attachment to the soil (save by gravity)
becomes an irrelevance.”

Lawrence Kitts v Bugisu Cooperative Union (Civil Appeal No.15

Of 2004) ((Civil Appeal No.15 Of 2004)) [2010] UGSC 9 (27
October 2010);

This appeal arises from the decision of the Court of Appeal whereby
that court reversed the decision of the High Court which had been
given in favour of the Respondent. The appellant who had been the
plaintiff in the High Court, was dissatisfied with the decision of the
Court of appeal.

The case arises from a land dispute. The appellant purchased the
suit land from one Mabaaku Wangofu and took possession of the
same. He later applied to the Uganda Land Commission for a lease
over the same land. He was given a lease offer by the Commission,
but before we could accept the offer, he was in exile, Subsequently,
the same land was bought by the respondent from some other
people, and it proceeded to process a land over the same land and
was accordingly registered as proprietor of the same under the
Registration of Titles Act.

The appellant then filed a suit in the High Court against the
respondent who was the 2 defendant, and two other people, namely
one John Wakuma as 1st defendant and the Registrar of Titles as 3 rd
defendant. This two are not party to this appeal. He claimed that he
had an equitable interest in the suit land and that the respondent
was aware of his interest at the time it acquired the suit land and
processed a title for it. He asserted that the respondent was not a
bona fide purchaser for value as it had notice of his interest.
Furthermore, he alleged that the respondent had knowledge that
the person who purportedly sold the land to it had no interest in the
same. He accused the respondent of fraud whose particulars were
given as:

i) Purchasing the land when the plaintiff was detained in military

custody
ii) Selling the land when the plaintiff was detained in military
custody
iii) Agents and/servants of the second defendant (respondent)
purchasing the land deliberately due to political difference
iv) Selling the land well aware Mbale Civil Suit No. 1 of 1981 had
decreed the land to belong to the plaintiff.
v) Paying rents for survey of the land after becoming aware of Civil
Suit No. 1/81 and the plaintiff’s further objection.
vi) Secretly selling and purchasing the land.
vii) Purchasing and selling land aware that there were disputes.
At the trial, the respondent, for its part argued that it had in 1981
purchased a total of 39.3 hectares of land at Khamoto which land
was customarily held by the Bushilusha clan, and Bumakyero clan
and the 1st respondent. They claimed to have ascertained that the
sellers were entitled to sell the land. It denied any notice of the
appellant’s interest. It applied for a lease in the normal way in
1990, the land was surveyed, and it became the registered
proprietor thereof on the 22 January 19914 It denied any of the
particulars of fraud.

The following issues were framed for court’s determination: 1

Whether the plaintiff purchased the land in issue.
2. Whether the plaintiff applied for the land in dispute
3. Whether the second defendant purchased the land in dispute
from the first defendant.
4. Whether the second defendant is a bona tide purchaser for value
without notice.
5. What remedies are available if any.
The trial court answered the first three of the above issues in the
affirmative. The court found as a fact that the appellant purchased
the land in issue. The court, though not finding the respondent
guilty of fraud, nonetheless found that its conduct amounted to
willful negligence for which it could be deprived of the protection
given to a bona fide purchaser for value without notice. The court
further found that the first defendant in that suit, was fraudulent
as he sold the disputed land to the respondent when he was aware
that another person, PW2 Wangofu had already sold the land to the
appellant. The court, therefore, ordered for the cancellation of the
respondent’s name from the register and for the land to revert to the
appellant. The first defendant and the respondent were ordered to
pay to the appellant general damages of Shs.3,000,000/= for
trespass and costs of the suit.
On appeal by the respondent, the Court of Appeal found for the
respondent, allowed the appeal and substituted the orders of the
High Court with one re-instating the respondent’s name on the
Register and the certificate of Title. The Court of Appeal also set
aside the order for damages and awarded costs in the Court of
Appeal and the lower court to the respondent. Dissatisfied, the
appellant appealed to this court on two grounds as follows:

1. “The Honourable Justices erred in law and fact when

they held that the learned Judge did not apply the facts of the
case to the law thus coming to a wrong decision.
2. The Honourable Justices erred in law and fact when
they failed to evaluate the evidence on record properly or at
all, thus accassioning a miscarriage of justice.
When this appeal came up for hearing before this court, the
appellant was represented by Mr. Obed Mwebesa, while the
respondent was represented by Mr. James Gyabi. Both filed written
submissions. In his submission, Mr. Mwebesa argued both grounds
of appeal together as Mr. Gyabi did in response. I intend to consider
them in the same manner.
Counsel argued that the Court of Appeal wrongly applied the facts
of the case to the law. In his view, once the court found that the
appellant had bought the land in issue, then the respondent should
have become suspicious when it was purchasing the land and made
inquires about the interest of the appellant. He asserted that the
respondent, on the evidence of PW3 and DW6, was aware of the
interest of the appellant, yet he still went ahead to process a land
title. He cited the case of DAVID SEJJAKA NALIMA —Vs- REBECCA
MUSOKE, SCCA NO. 12/85 in support of his submission that
where a party abstains from making inquires for fear of learning the
truth about a property he is purchasing, that party may be found
not to be a bona fide purchaser for value and fraud may be properly
ascribed to him. Counsel supported the finding of the trial Judge
that the respondent was not a bona fide purchaser for value and
supported the decision of the trial court to cancel the certificate of
title of the respondent in accordance with section 176 of the
Registration of Titles Act.
Counsel further criticised the Court of Appeal for what he called a
failure in its duty to re-evaluate the evidence as a first appellate
court. In his view, the court would not have come to the conclusion
that the sellers to the appellant did not own the land since they had
no title to it if it had properly re-evaluated the evidence. It would
instead have found that the appellant had interest in the suit land
before the respondent purchased it, and that the respondent was
aware of that interest. Counsel further criticised the Court of
Appeal for stating that the lease offer was the basis of the
appellant’s claim yet failing to consider the appellant’s equitable
interest in the land.
He further submitted that the Justices of Appeal were wrong to find
that because the appellant had purchased customary land, that had
made his interest in the property void, yet the respondent had also
bought the same property as customary land. To counsel this
amounted to a miscarriage of justice visited upon the appellant.
Therefore, he submitted, the appellant had an equitable interest in
the land, and on the evidence, the respondent was not a bona fide
purchaser for value and was guilty of fraud. He supported the
decision of the trial Judge and prayed this court to allow the
appeal, set aside the decision of the Court of Appeal and reaffirm
the decision of the High Court. He also prayed for costs in this court
and in the courts below.
In response, counsel for the respondent supported the decision of
the Court of Appeal. He contended that the court was alive to its
duty as a first appellate court and had accordingly re-evaluated the
evidence at great length, considered the law applicable and came to
the right conclusion and decision. On the basis of UGANDA
BREWERIES -Vs- UGANDA RAILWAYS CORPORATION, SCCA NO.
6 OF 2001, counsel submitted that Court of Appeal was not bound
to follow the trial Judge’s findings of fact if it appeared to it that the
trial Judge had failed to take into account particular circumstances
or had come to a decision that was wrong.
Counsel submitted further that ,this was a case of customary land
holding and that the Court of Appeal had considered the matter in
the context of the law applicable, i.e. the Public Land Act, 1969, the
Land Reform Decree No. 3/75, and The Registration of Titles Act.
He supported the decision of the Court of Appeal that the land in
issue
was a customary holding which did not create a legal interest in
land, and the Uganda Land Commission was entitled under the
Land Reform Decree to offer the same to any other person,
including the respondent, and to process a certificate of Title under
the Registration of Titles Act. Counsel further pointed out that the
trial Judge had not found evidence of fraud, and was therefore
wrong to have ordered cancellation of the Respondent’s title. The
Court of Appeal was right to restore the title. He urged this court to
confirm the decision of the Court of Appeal and dismiss the appeal
with costs.
I have carefully considered the record and the submission of
counsel. It is clear that the land in issue was, before its conversion
to leasehold, customary tenure. The appellant’s case is that he had
an equitable interest prior to the respondent’s acquisition of the
land which interest the respondent was aware of, or could have
found out had it exercised due diligence before registering the land
and obtaining title therefore. This failure amounted to willful
negligence, and therefore deprived the respondent of the protection
of a bona tide purchaser for value.

The trial Judge dealt with this matter thus: -

“From the evidence of DW6 Mohamed Wepukbulu who the

Estates Manager of the 2 nd defendant (respondent) directly
concerned with the transaction, no efforts were mode to
inquire about or take in the equitable interest of the plaintiff.
In this regard, I am of the view that the 2nd defendant was
grossly negligent in not exercising ordinary precautions to
take in the interest of the plaintiff and should not e accorded
the protection given to a bona fide purchaser for value without
notice. The conduct of the 2 nd defendant while not direct fraud
amounts to willful negligence for which it can be deprived of
the protection to a bona fide purchaser for value without
notice.”
With respect, I think the learned trial Judge did not address himself
to the relevant laws at the time. Having found that the land in issue
was customary holding, the Judge ought have addressed himself to
the provisions of the Land Reform Decree 1975 and the Public Land
Act, 1969 to ascertain how customary interests were provided for
under the law. In that regard section 3 of the Decree should have
offered a useful guide. It states:
3.(1) “The system of occupying public land under customary
tenure may continue and no holder of a customary tenure
shall be terminated in his holding except under terms and
conditions imposed by the commission including the payment
of compensation, and approved by the Minister having regard
to the zoning scheme, if any, affecting the land so occupied,
and accordingly, the Public Land Act, 1969 shall be construed
as if subsection (2) of section 24 thereof has been deleted
therefrom.”
(2) “For the avoidance of doubt, a customary occupation of
Public land shall, notwithstanding anything contained in any
other written law, be only at sufferance and lease of any such
land may be granted by the Commission to any person,
including the holder of the tenure, in accordance with this
Decree “.

From the evidence, it is clear that the appellant was aware that he
had a customary tenure on public land. That is why he applied for
and was given, a lease offer on 3rd March 1976 so that he could
convert his customary tenure into leasehold under the Registration
of Titles Act. The lease offer had to be accepted within a given time.
He failed to do so, apparently because he had fled the country.
Under section 3(2) above, as long as he remained a customary
tenant on public land, he remained so only at sufferance. The
Uganda Land Commission was entitled to give a lease of the land to
any other person. This is apparently what happened. The interest of
the appellant could not be superior to the interest of the
respondent. The above provision alone would have defeated the
appellant’s suit.
Furthermore, as the Court of Appeal found, there was no evidence
that when the appellant bought the land from those that sold to
him, permission had been sought from, and necessary notice been
given to, the prescribed authority under section 4(1) of the Land
Reform Decree.
The Court of Appeal, correctly addressed the law on this point thus:
“The provisions of the above section were judicially considered
in the case of PAUL KISEKKA SAKU —Vs- SEVENTH DAY
ADVENTIST CHURCH (SCCA NO. 8/93). It was held that the
transfer of a Kibanja or customary holding without giving
notice to the prescribed authority, renders such transfer void
under the provisions of the Act. Section 56 states that a
certificate of title shall be conclusive evidence of all
particulars and endorsements appearing therein, and that the
person named therein as the proprietor is possessed of the
estate or interest described. The courts are enjoined to receive
and treat the certificate of title as conclusive evidence of its
particulars. Section 61 provides that with the exceptions
stated therein, the estate or interest of a registered proprietor
under the Act prevails over any other unregistered interest or
claim over the land. Section 184 operates as a bar in any
action brought for ejectment or recovery of land against a
person who becomes registered under the provisions of the Act
except as stated under the provision. Both these sections
protect the title of a registered proprietor except in case of
fraud. The fraud must be attributed to the person who
becomes registered as proprietor. In the case of MUSISI —Vs
GRINDLAYS BANK (U) LTD & OTHERS[1983] HCB 39 it was held
that a person registered through fraud is one “who becomes
registered proprietor through a fraudulent act by him or to
which he is a party or with full knowledge of the fraud.”
In another case of KAMPALA BROTHERS LTD —Vs- DAMANICO
(U) LTD SCCA No. 22/92 it was held that the transferee must be
guilty of some fraudulent act or must have known of such act
by somebody else and taken advantage of it. In other words it
has to be established by evidence that the registered
proprietor gained registration through participation in fraud.
The standard of proof is higher than a preponderance of
probability.”
I believe this is a correct statement of the law. The court then
proceeded to apply the law to the facts of the case. The court found,
correctly, that the appellant had failed to discharge the burden of
proving fraud. Indeed, as quoted above, even the trial judge did not
find fraud, but “willful negligence.” The appellant simply failed to
bring himself within the ambit of section 184 of the Registration of
Titles Act. Moreover, the customary interest of the appellant [ad
long been extinguished by the provisions of section 3(1) of the Land
Reform decree. As both courts concluded there was no evidence that
the officials of the respondent misled the Uganda Land Commission
at any one time during the survey of the land or the preparation of
the title.
In the circumstances I find that the Court of Appeal properly and
diligently re-evaluated the evidence and correctly applied the law to
the facts of the case. Ground one must fail.
With respect to ground two, I can only reiterate what I have already
stated with respect to ground One. The claim for a miscarriage of
Justice was based on a wrong premise that the appellant had been
deprived of his land. Clearly under the law, the appellant’s interest
had been lawfully extinguished. The Court of Appeal rightly cited
the case of FIRIDA BIRABWA —Vs- TIGAWALANA HCC No. 2/92
where the expression “substantial miscarriage of justice” was
considered. It was held in that case that a substantial miscarriage
of justice occurs where there has been a misdirection by the trial
court on matters relating to evidence or where there has been
unfairness in the conduct of the trial. In this case, there is no
allegation that this happened.
One naturally sympathises with the appellant that he had to be
away in exile. Possibly he would have accepted the lease offer and
would himself have been the registered proprietor. But the law took
its course and the respondent was duly registered as proprietor
with a valid leasehold interest. Accordingly ground 2 also must fail.
Be that as it may, this appeal highlights the plight of millions of
citizens who held land by way of customary tenure and were then
declared tenants at sufferance under the Land Reform Decree,
1975. They could be evicted by a more powerful person who could
easily process a land title and only pay compensation for
developments of the customary tenant. Yet to the customary tenant,
the right to live on his land was more important than any money he
may be paid as compensation for developments, with nowhere to go.
There is no doubt in my mind that that is why the 1995
Constitution fully institutionalized customary tenure as one of the
systems by which citizens may own land. This was, of course, too
late to help the appellant.
In the circumstances, I would dismiss the appeal. But in the
interests of justice, each party shall bear its own costs in this co.irt
and in the Court of Appeal.

Wuta-Ofei v Danquah
Privy Council – Ghana – Trespass – Land – Possession.
Trespass – Land – Possession – Evidence – Inference of possession
where land not used – Title temporarily vested in state – Continuance of
former
possession.

Preamble
In order to establish possession of land, it is not necessary for a
claimant to take some active step in relation to the land such as
enclosing the land or cultivating it; the type of conduct which
indicates possession must vary with the type of land, and, where the
possession sought to be maintained is against a person who never
had any title to the land, the slightest amount of possession would be
sufficient to maintain an action for trespas (see p 600, letter a, post).
Dictum of Parke B, in Brown v Notley ((1848), 3 Exch at p 222),
disapproved. Dictum of Lord Hatherley in Bristow v Cormican ((1878),
3 App Cas at p 657), applied. D acquired land in Ghana by gift made
by way of oral grant in 1939 according to native custom. The land was
marked out, four pillars bearing D’s initials being placed at the four
corners of the land. The land was not built on or used, and D
delegated to her mother the task of looking after the land. In 1940
certain lands, including this land, were vested by ordinance in the
chief secretary in trust for the Crown free from all titles, but subject to
provision for release when no longer required. In 1945 the gift to D
was confirmed by indenture duly registered. This recited that D had
entered into and had been in possession of the land ever since the gift.
In 1948 the appellant started to build on the land. D protested by
letter of her solicitors in March, 1948, and in April, 1948, brought this
action for trespass. In 1956 the land was released by the government
and D’s title revived.

Held – Although the evidence of possession or continuance of

possession after 1940 by D was exiguous, the proper inference was
that D had continued in possession; accordingly, she was entitled to
maintain the action for trespass.
Appeal dismissed.

Kampala District Land Board and Another v Venansio

Babweyaka and Others ((Civil Appeal No.2 of 2007)) [2008] UGSC
3 (11 February 2008);

1. KAMPALA DISTRICT LAND BOARD }

2. GEORGE MITALA }:::::: APPELLANTS
AND

1. VENANSIO BABWEYAKA }
2. JOHNSON MWIJUKYE }
3. SEMPALA SENGENDO } ::::::::::::::::::: RESPONDENTS
4. APOLLO NABEETA }

JUDGEMENT OF ODOKI, CJ

This second appeal arises from the judgment and orders of the
Court of Appeal of Uganda whereby the appellants’ appeal against
the respondents was dismissed with costs.

The brief facts of the case are that the respondents brought an
action in the High Court claiming an interest in a piece of land
comprised in LVR 2847 Fol. 9 known as Block 7 Plot 1028 situated
at Ndeeba, Kampala. They claimed to have been in occupation of
this land from about 1998 having purchased their interests from
previous occupiers who had acquired it as far back as 1970. The
respondents owned temporary structures on the land wherein they
operated timber yard business.

On 31 October 1999, the 1 st appellant which was the statutory

owner of the suit land allocated the land to the 2 nd appellant who
obtained a certificate of title to the land on 20 November 2000. The
respondents who were in occupation of the land were among the 20
plaintiffs who originally filed HCCS No. 511 of 2000 to challenge the
allocation. The rest of the original plaintiffs have since withdrawn
from the proceedings. The respondents sought declarations that
they were bona fide/lawful occupants and/or customary owners of
the suit land.
On 21 December 2001, Katutsi J, held that the respondents were
not lawful occupants or bona fide occupants or customary owners
of the suit land and dismissed the suit with costs. The appellants
being dissatisfied with the judgment of Katutsi J, filed Civil Appeal
No. 20 of 2002 in the Court of Appeal. On 6 August 2002, the Court
of Appeal held that the respondents were not lawful or bona fide
occupants but were customary owners of the suit land and ordered
cancellation of the 2nd appellant’s lease.

The appellants appealed to the Supreme Court against the finding

that the respondents were customary owners vide Civil Appeal No.
16 of 2002.
On 17 December 2003, the Supreme Court allowed the appeal on
the basis that oral evidence was required to prove the parties
claims. The Court set aside the judgment of the Court of Appeal and
ordered a retrial of the suit.

The retrial was held before Okumu-Wengi J. The issues framed at

the trial were as follows:

“1.Whether the plaintiffs were customary owners of the suit

land.

2.Whether the land was available for leasing to the 2 nd

defendant.

3.Whether the second defendant obtained the certificate of

title lawfully.

4. Remedies.”

The retrial Judge held on the first issue that the respondents were
not customary owners of the suit property but were lawful
occupants. He answered the 2 nd and 3rd issues in the negative. He
ordered the cancellation of the certificate of title of the 2 nd appellant.
The 1st appellant was ordered to pay general damages of
shs.6,000,000/= to each of the respondents.

The appellants appealed to the Court of Appeal against the

judgment of the High Court and the respondents filed a cross-
appeal against the finding that they were not customary owners of
the suit land. The Court of Appeal dismissed the appeal and allowed
the cross-appeal.
The appellants have appealed to this Court on the following
grounds:

1.The learned Justices of Appeal erred in law and fact when they
held that the respondents are customary owners of the suit land.

2.The learned Justices of Appeal erred in law and fact when they
held that the allocation of the suit land to the 2 nd appellant was
unlawful.

3.The learned Justices of Appeal erred in law and fact when they
held that the certificate of title to the suit land had been obtained
fraudulently.

4.The learned Justices of Appeal erred in law and fact when they
upheld the award of general damages.

M/s Sendege Senyondo & Co. Advocates represented the 1 st

appellant and M/s Kavuma Kabenge & Co. Advocates represented
the 2nd appellant. The respondents were represented by M/s Bamwe
& Co. Advocates and M/s Muhimbura & Co. Advocates. Both
counsel filed written submissions.

In their first ground appeal, the appellants complain that the

learned Justices of Appeal erred in law and fact when they held that
the respondents are customary owners of the suit land. Counsel for
the appellants submitted that the holdings by Mukasa Kikonyogo,
D.C.J., with whom Kitumba JA agreed, that the respondents were
customary owners because the Land Act is silent about customary
ownership in urban areas, the controlling bodies acknowledged the
respondents’ claims, and customary tenure can be established by
any activity on the land, were grave misdirections of law and fact.

Learned counsel for the appellants pointed out that the learned
Deputy Chief Justice agreed with the appellants submissions that
Section 24 of the Public Land Act 1969 and Section 5(1) of the Land
Reform Decree 1975 prohibited customary tenure in urban areas.
He referred to the decision of this Court in Tifu Lukwago vs
Samwiri Mudde Kizza and Nabitaka Civil App. No. 13 of 1996
which cited the decision in Paul Kisekka Ssaku vs Seventh Day
Adventist Church Civil Appeal No. 8 of 1993 (unreported) where it
was held that customary occupation without consent of the
prescribed authority was unlawful. He argued that the respondents
acquired the land between 1998 and 2000, deriving their interest
from Misaeri Nsubuga (P.W.1) who acquired the land in 1970 and
since it was illegal for Nsubuga to hold a customary tenure in the
city, the respondents could not acquire an interest which he did not
have. He contended that although the Land Act does not prohibit
customary tenure in urban areas the Act is not retrospective and
cannot apply to pre-1998 customary occupation.

As regards the holding that the controlling bodies acknowledged the

respondents’ claim of customary ownership, learned counsel for the
appellants submitted that there was no evidence to that effect. They
contended that payment of rates under the then Local Governments
(Rating) Act, Cap 242 levied on owners hereditaments including
building structures did not amount to acknowledging customary
ownership.

On the holding that customary tenure can be established by any

activity on the land, learned counsel submitted that the
respondents did not adduce any evidence to prove the custom of the
area in order to establish their claim of customary ownership.
Counsel contended that the respondents’ witnesses either disowned
customary tenure or expressed ignorance about it. They pointed out
that Misaeri Nsubuga (PW1) said he acquired business premises,
not land. He also stated that there was no customary interest over
the land. The second witness Tumusiime Robert testified that he did
not know the custom governing the occupancy of land in the area.
And the Land Officer, Elizabeth Laker stated that she was not an
expert in customs of the area or any area in Uganda.

Learned counsel argued that the learned Deputy Chief Justice

misdirected herself in holding that construction of timber sheds and
offices and operation of different types of businesses made the
respondents lawful customary tenants. Counsel referred to the
definition of customary tenure in Section 1(1) of the Land Act as “a
system of land tenure regulated by customary rules which are
regulated in their operation to a particular description or
class of persons” the incidents of which are described in Section 3.
They contended that whoever relies on a custom must prove it,
citing Tifu Lukwago vs Samwiri Mudde Kizza and Justina
Nabitaka, (supra) in support of their contention.

It was counsel’s submission that it is not enough to carry out

activities on land for however long the period, but the claimant
must prove that in that area it is a custom that whoever carries out
certain activities for a specified period of time becomes a customary
owner. Counsel contended that the case of Marko Matovu and 2
others vs Mohammed Sseviiri and 2 others, CA No. 7 of 1978 is
distinguishable from the instant case because the appellants in that
case were pastoral people who could claim rights over land by
construction of wells and clearing land for cultivation and
customary tenants were protected under both the Public Lands Act
and the Land Reform Decree.

On proof of custom, learned counsel for the appellants submitted

that Section 46 of the Evidence Act provided that where a court has
to form an opinion as to the existence of any general custom or
right of persons who would be likely to know of its existence, are
relevant. He relied on the case of R. V. Ndembera s/o Mwandawale
(1947) 14 EACA 85 where it was held that native custom must be
proved in evidence and cannot be obtained from the assessors or
supplied from the knowledge and experience of the trial Judge.

Learned counsel for the respondents argued all the grounds of

appeal together but I shall first consider their submissions on the
first ground of appeal in view of its importance. Counsel supported
the holding by the majority Justices of Appeal that the respondents
were customary owners of the suit land. Their main argument was
that the respondents and their predecessors had been in exclusive
possession of the suit land since 1970, and had utilized it for
business of selling timber and motor garage, on structures they
constructed to facilitate their trade. The respondents also paid
taxes and rates to the Kampala City Council.

Counsel submitted that the instant case was an all fours with the
case of Kampala District Land Board and Another vs National
Housing and Construction Corporation Civil Appeal No. 2 of 2004
where it was held that the respondent who had been in possession
of the suit land for a long time and utilized it was entitled to have
its interest recognized and protected by the first appellant.

In reply to the submission that previous statutory provisions

prohibited the holding of customary tenure in urban areas, learned
counsel for the respondent contended that the respondents would
rely on exclusive possession and usage for a long time without
interruption or challenge citing the decision of this Court in
Kampala District Land Board and Another vs National Housing
and Construction Corporation (Supra) as authority for their
proposition. Counsel also submitted that the 1995 Constitution and
Land Act enhanced the rights of persons claiming ownership of
customary land in urban areas.

Learned counsel referred to the case of Marko Matovu & 2 Others

vs Mohammed Sseviiri & Another Civil Appeal No 7/788 (CA)
where it was held that customary tenure can be established by the
cultivation of seasonal crops or grazing cattle and related
construction of wells to water cattle, and submitted that the
decision supported the respondents’ claim of customary ownership.
Counsel conceded that the respondents’ interest was not derived
from mailo land or under the Busuulu and Envujjo Law 1928, but
was established by their activities on the suit land. It was the
contention of counsel that what is customary in a particular place
depended on the use to which the land is put by the occupants as
well as the duration it has taken.

Counsel submitted that there was proof of how the respondents had
acquired the land and utilized it. They relied on a passage in Marko
Matovu vs Mohammed Sseviiri & Another (Supra) where the
Court of Appeal observed,

“There is no definition of customary tenure perhaps because it

is so well understood by the people. Where a person has a
kibanja, it is generally accepted that he thereby established
customary tenure on public land. But not all people live on a
kibanja. In many areas people grow seasonal crops on the
land they occupy and in other places some use the land for
grazing cattle only. Yet all these people also enjoy customary
rights over land they use.”

In the leading majority judgment on the question whether the

respondents were customary tenants, the learned Deputy Chief
Justice supported by Kitumba J.A. accepted the submission of
counsel for the appellants that the respondents were customary
tenants on the suit land. On the issue of prohibition of customary
tenure in urban areas, the learned Deputy Chief Justice said,

“On the submission of counsel for the 2 nd appellant that the

respondents could not have had customary tenure in urban
areas due to prohibition in my view they do not affect the
respondents’ claim in this case. I am mindful of Sections 24 of
the Public Land Act 1969 and S. 5(1) of the Land Reform
Decree 1975 which prohibited customary tenure in urban
areas.

For some reasons not known, the 1998 Land Act is silent on
the said prohibition. This could be seen perhaps as a general
tendency in the Act to enfranchise occupants with usufruct
rights to enable them secure other interests in the land by
either obtaining a certificate of occupation or a leasehold.
In the instant case the silence of the Act coupled with the
facts of this case including acceptance of payment of taxes
and rates by the Kampala City Council, in respect of activities
carried out on the suit land, support the respondents’ claim of
customary tenure. It is not disputed that prior to 1998 Land
Act, Kampala City Council had a statutory lease over the suit
land which passed over to the Kampala District Land Board
its successor in title. By the conduct of both those controlling
authority bodies, they acknowledged the respondents’ claim.”

As regards proof of customary law, the learned Deputy Chief Justice

held that in accordance with Section 2 of the Land Act, it was an
accepted practice in the area comprised of the suit land for the
people there to carry out the various types of businesses which the
respondent carried out in the area. The Deputy Chief Justice
acknowledged that the respondents’ claim was not traced to mailo
land under the Busuulu and Envujjo Law 1928.

On the other hand, Mpagi-Bahigeine J.A. differed with the majority

decision on this issue and agreed with the trial judge that the
respondents were not customary tenants within the definition of
Section 3 of the Land Act, but they were licensees with possessory
interest in the suit land who should have been given priority over
anybody else. In coming to this conclusion, she held that payment
of rates does not establish title to land but establishes user of land
or property, and that the respondents’ claim does not answer to the
definition of customary tenure under Section 2 of the Land Act or
its incidents or features under Section 3 of the Act.

The first point to deal with is whether there was a prohibition of

customary tenure in urban areas. I think it is common knowledge
that the Public Land Act 1969 abolished customary tenure in urban
areas. Section 24(1) (a) of the Act provided,

“24(1) subject to the provisions of subsection (5) of this Section

it shall be lawful for persons holding by customary tenure to
occupy without grant, lease or licence from the controlling
authority unalienated public land vested in the Commission, if

(a)
the land is not in urban area.”

Subsection (5) stated as follows:

“The Minister may by statutory order specify any area of
Uganda to be an area in which public land is not occupied by
customary tenure at the commencement of such order shall
not thereafter be occupied otherwise than by virtue of an
estate interest or other right of occupancy granted by the
controlling authority or upon such conditions as the Minister
may specify.”

The prohibition of customary tenure in urban area is clear from

Section 24(1)(a) of the Public Lands Act. The provisions of
subsection (5) merely enabled the Minister to extend the prohibition
to other areas especially the rural areas as can be seen from the
Public Land (Restriction of Customary Tenure) Order 1969 (SI
103/1969). Therefore, at the time the predecessors of the
respondents occupied the suit land in 1970 they could not do so
under customary tenure.

The Land Reform Decree 1975 declared all land in Uganda to be

public land to be administered by the Uganda Land Commission in
accordance with the Public Land Act 1969, subject to such
modifications as may be necessary to bring that Act into conformity
with the Decree. The system of occupying public land under
customary tenure was to continue, but only at sufferance and any
such land could be granted by the Commission to any person
including the holder of the tenure in accordance with the Decree.
Under Section 5 it was provided,

“5(1) With effect from the commencement of this Decree, no

person may occupy public land by customary tenure except
with the permission in writing of the prescribed authority
which permission shall not be unreasonably withheld:

Provided that the Commission may, by statutory order specify

areas which may be occupied by free temporary licence which
shall be valid from year to year until revoked.”

Subsection (2) provided,

“(2) Any agreement or transfer purporting to create a

customary tenure of land contrary to Subsection (1) of this
Section shall be void and of no effect and, in addition the
person purporting to effect such transfer shall be guilty of an
offence and shall be liable on conviction to a fine not
exceeding five thousand shillings or to imprisonment for a
term not exceeding two years or to both such find and
imprisonment.”

Under the Land Reform Regulations 1976, any person wishing to

obtain permission to occupy public land by customary tenure had
to apply to the Sub County Chief in charge of the area where the
land was situated. After processing the application, it had to be sent
to the Sub-county Land Committee for approval.

The question is whether the respondents did acquire the customary

ownership following the enactment of the Land Reform Decree. The
answer to this question appears to be in the negative. Restrictions
on acquisition of customary tenure under the Public Lands Act
seem to have continued as the law continued to govern all types of
public land including customary tenure subject to the provisions of
the Decree. In order to acquire fresh customary tenure one had to
apply to the prescribed authorities and receive approval of his or
her application. There was no evidence that such prescribed
authorities existed nor that the respondents or their predecessors
acquired fresh customary tenure in accordance with the Land
Reform Decree. I would therefore hold that the respondents could
not have legally acquired customary tenure in an urban area of
Kampala City prior to the enactment of the Land Act 1998.

It was held by the Court of Appeal that the Land Act is silent on the
holding of customary tenure in urban areas. It was submitted on
behalf of the respondents that the respondents were therefore free
to hold land under customary law. That may well be so, but as
counsel for the appellants submitted, the provisions of the Land Act
could not apply retrospectively to legalise acquisition of customary
tenure in urban areas before 1998.

The next question is whether the respondents proved that they

occupied the suit land by customary tenure. Customary tenure was
first defined in S.54 of the repealed Public Land Act as “a system
of land tenure regulated by laws or customs which are limited
in their operation to a particular description or class of
persons.” The Land Act now gives an elaborate definition of
customary tenure. Section 1 (l) defines customary tenure as follows:

“Customary tenure is a system of land regulated by customary

rules which are limited in their operation to a particular
description or class of persons of which are prescribed in
Section 3.”

The incidents of forms of customary tenure are described in Section

3 in these terms:

“(1) Customary tenure is a form of tenure-

(a) applicable to a specific area of land and specific
description or class of persons;

(b)subject to Section 27, governed by rules generally accepted

as binding and authoritative by the class of persons to which
it applies;

(c) applicable to any persons acquiring land in that area in

accordance with those rules;

(d) subject to Section 27 characterized by local customary

regulation;

(e) applying local customary regulation and management to

individual and household ownership the use and occupation
of, and transaction in, land;

(f) providing for communal ownership and use of land;

(g) in which parcels of land may be recognized as subdivision

belonging to a person, a family or a traditional institution;
and

(h) which is owned in perpetuity.”

Section 46 of the Evidence Act Cap 6, provides that the opinion of

experts is relevant in establishing the existence of a custom or
customary law. The Section states:

“When a Court has to form an opinion as to the existence of

any general custom or right, the opinions as to the existence
of that custom or right of persons who would be likely to know
its existence if it existed are relevant.”

It is well established that where African customary law is neither

well
known nor documented, it must be established for the Courts’
guidance by the party intending to rely on it. It is also trite law that
as a matter of practice and convenience in civil cases relevant
customary law, if it is incapable of being judicially noticed, should
be proved by evidence of expert opinion adduced by the parties. In
Ernest Kinyanjui Kimani v. Muira Gikanga [1965] E.A. 735,
Duffus J. A. said at page 789:

“As a matter of necessity, the customary law must be

accurately and definitely established. The Court has a wide
discretion as to how this should be done but the onus to do so
must be on the party who puts forward the customary law.
This might be done by reference to a book or document of
reference and would include a judicial decision but in my
view, especially, of the present apparent lack in Kenya of
authoritative text books on the subject or of any relevant case
law, this would in practice, usually mean that the party
propounding the customary law would have to call evidence to
prove the customary law as he would prove the relevant facts
of his case.”

No expert in customary land tenure was called and the Courts

below relied on the evidence adduced by the parties. The evidence
adduced was inconsistent and contradictory and in my view
inconclusive in establishing a system of customary tenure over the
suit property. For instance Misairi Nsubuga (P.W.1) admitted that
Tom Kibirige (the previous occupier) sold him a business premises,
but not the land. He denied having a kibanja on that land, or any
customary interest on the land. The second witness Robert
Tumusiime who also bought land from PW 1 through Edward Kizito
(PW1’s nephew) claimed to be a customary occupant of the land
because he had been living on the land without title. He conceded
that he did not know the custom governing the occupancy of the
land in the area. The third appellant Sempala Sengendo claimed he
bought the land according to customary practice in the area. He
asserted that he was a bona fide occupant as a customary owner.

On the other hand Edward Kizito who was the nephew or “son” of
the original occupier Nsubuga claimed that Nsubuga did not own
land but only business in Ndeeba. He also asserted that he and his
“father” Nsubuga had not had bibanja in the area, nor were they
customary tenants on the land. It should be noted that this witness
had been one of the original plaintiffs but who had withdrawn his
claim against the appellants.

The respondents called Ms Elizabeth Laker a Senior Land Officer

whose duties include processing lease offers. In her evidence, she
admitted that she was not an expert of Ndeeba area customs nor
was she a customary law expert of any customary area of Uganda,
and therefore did not know customs governing occupation of land in
Ndeeba.

On the basis of this evidence the learned trial judge concluded:

“From the above as well as the statements of other plaintiffs’

witnesses it became clear that the plaintiffs told Court what
they believed to be land ownership. That was not a legal
definition but a question of possession and occupation without
reference to legal issues of land tenure and land ownership.
For this Court their evidence establishes the fact that they
became lawful occupants and had lawful possession without
legal title. They were also not customary tenants as the land
in question was under a statutory lease. I agree that they had
land under some kind of license and they had established a
usufruct interest in the occupation and possession of the land
in question. They were not in the category of customary
tenants as such. They were occupants by whatever title and
this was an agreed fact.”

In her judgment, Mpagi-Bahigeine J.A. agreed with the finding of

the learned judge when she held that the respondents claim to the
suit land did not answer the definition of customary tenure in
Section 2 of the Land Act nor the incidents stipulated in Section 3
of the said Act. She observed,

“It is clear that the appellants enjoyed uninterrupted use of

the land for a long time, their right to such possession
stemming from Misaeri Nsubuga (PW1) who bought it from Tom
Kibirige who used to operate a garage on it. PW1 was
emphatic that he had no interest in the land though Kampala
City Council had a statutory lease granted by the Uganda
Land Commission in 1920 and which ceased to exist when the
1995 Constitution came into force, the respondents’
possession remained uninterrupted as much as the land
remained unsurveyed. Thus the first appellant the Kampala
District Land Board which came into existence under the Land
Act 1998 should have recognized the respondents whom it
found on the land.”
The learned Justice of Appeal concluded,

“I would thus agree with the learned Judge that though the
respondents are not customary tenants within the definition
of Section 3 they are licencees with possessory interest in the
suit land who should have been given priority over anybody
else.”

I am in general agreement with the learned Justice of Appeal that

the respondents failed to establish that they were occupying the
suit land under customary tenure. There was no evidence to show
under what kind of custom or practice they occupied the land and
whether that custom had been recognized and regulated by a
particular group or class of persons living in the area. I therefore
find merit in the first ground of appeal which should succeed.

In the second ground of appeal the appellants complain that the

learned Justices of Appeal erred in law and fact when they held that
the allocation of the suit land to the 2 nd appellant was unlawful.
Counsel for the appellants criticized the Justices of the Court of
Appeal for holding that the 2 nd appellant did not obtain the
certificate of title lawfully, on the grounds that the respondents
were entitled to a first offer of the lease to the 2 nd respondent and
that there was a breach of the principles of natural justice.

Learned counsel for the appellants contended that there was no

illegal act or omission proved. Counsel submitted that the
respondents were not lawful occupants, bona fide occupants or
customary tenants protected by the Land Act. It was the contention
of counsel that it was surprising that the Justices of Appeal agreed
with the finding of the trial Judge that the respondents were lawful
occupants of the disputed land yet the respondents had cross
appealed alleging that they were customary tenants. Counsel
argued that since the law does not recognize their occupancy, the
question of natural justice could not arise.

Citing Section 178 of the Registration of Titles Act which was relied
on by the Court of Appeal, counsel for the appellants submitted
that the learned Justices of Appeal misapplied the Section which
protected only a person who was deprived of land or any estate or
interest in land which the respondents did not own, nor had any
legally recognized interest therein. It was their submission that
where a person is deprived of land or interest in land the remedy
provided under the same Section is damages not impeachment of
title.

Counsel for the appellants also relied on Article 241(1) (a) of the
Constitution and Section 59(1) (a) of the Land Act for the
submission that a District Land Board has power to allocate land in
the district which is not owned by any person or authority. It was
contended that since the respondents were not owners of the suit
land, no law was violated in allocating the suit land. Moreover,
counsel submitted, the Land Regulations 2001 (SI 16/2001) were
not applicable to the suit land because they were published on 23
March 2001 well after the allocation of the suit land on 31 October
2000.

The second ground of appeal seems to cover the 2 nd and 3rd issues
framed at the trial namely.

“2. Whether the land was available for leasing to the 2 nd

Defendant.

3.Whether the second defendant obtained the certificate of

title lawfully.”
As pointed out earlier the learned Judge answered both issues in
the negative. He stated his conclusion as follows:

“I have come to the conclusion that the plaintiffs were lawful

occupants of the disputed land and as such were like tenants
of some sort even if they were like what land-Lawyers
derogatively refer to as squatters. They had developments and
property and worked on the land. They had usufruct interest
over it as it were continuing to occupy and use the land. They
could have secured a lease or if it were to be given to other
persons their interests should not have been overshadowed the
way it was done giving the impression that some disputed the
leasing of the land.”

Mpagi-Bahigeine J.A. agreed with the conclusion of the trial Judge.

She held that the 1 st appellant should have recognized the
respondents’ interest in land whose possession has been
uninterrupted over the unsurveyed land. She also held that the
respondents were licencees with possessory interest in the suit land
who should have been given priority over anybody else. She
therefore held that the suit land was not available for leasing to the
2ndappellant.

The learned Justice of Appeal further held that the failure to give
the offer of a lease to the 1 st appellant before anybody else
amounted to a breach of natural justice. She observed,

“The second appellant was deliberately dishonest when he

proceeded to obtain a title without consulting with the
occupants and authorities of the area. The surveyors they sent
to survey the land had the audacity to deceive the respondents
that they were looking for water pipes for the neighbouring
Wilson Zone whereas not. Most surprisingly even the
compensation cheques for the respondents were made out long
before the respondents had been heard and listened to over the
matter.”

The learned Justice of Appeal referred to the authority of General

Medical Council vs Spackman (1943) 2 All E.R. 337 where it was
held that a decision arrived at in the absence or departure from the
essential principles of natural justice must be declared no decision
at all. She concluded that the 2 nd appellant had not obtained the
certificate of title lawfully.
The learned Deputy Chief Justice supported the conclusions
reached by Mpagi-Bahigeine J.A. on these issues. She observed,

“In this appeal, clearly the failure to follow the prescribed

procedure for registration of the 2 nd appellant’s interest in the
land was a trick to deceive the relevant authority that the
land was available when it was not. The registration was
hence unlawful and cannot be left to stand. As it was rightly
pointed out by Bahigeine J.A. the respondent had the first
option to the lease. The offer to the 2 nd appellant would have
been considered if the respondents had declined to take it for
one reason or another. This was a breach of the rules of
natural justice and Section 178 of RTA (Supra).”

She concluded that therefore there was no land available to allocate

to other people as long as the respondents continued to use the
disputed land or had been taken away from them lawfully which
was the case here. She held that the respondents would be entitled
to the first offer or be given adequate compensation.

With respect I am unable to fault the conclusions reached by the

learned Justices of Appeal on the issue whether the 2 nd appellant
obtained the lease lawfully. It was an admitted fact that the
respondents were in occupation of the suit land at the time the
lease was granted to the second appellant. The predecessors in
occupation to the respondents had been in possession of the suit
land since 1970. Although it is my view that they were not
customary tenants, they were described variously in the lower
Courts as squatters, tenants of a tentative nature, licensees with
possessory interest, or bona fide occupiers protected from
administrative injustice.

It seems to me that the finding that the respondents were bona fide
occupants of the suit land was not seriously challenged in this
Court. The attack by the appellants appears to concentrate on the
finding that the respondents were customary tenants. I agree with
the lower Courts that the respondents were bona fide occupants as
defined in Section 29(2) of the Land Act which states:

“(2) “Bona fide occupant” means a person who

before the coming in force of the Constitution –

(a)
had occupied and utilised or developed any land unchallenged
by the registered owner or agent of the registered owner for
twelve years or more.”

The respondents purchased the suit land in 1998 from persons who
had occupied and utilised the land since 1970, and were therefore
deemed to be bona fide occupants in accordance with subsection (5)
of Section 29 of the Act which provides:

“(5) Any person who has purchased or otherwise acquired

the interest of the person qualified to be a bona fide occupant
under this Section shall be taken to be a bona fide occupant
for the purposes of this Act.”

In my view the respondents were not licensees on the suit land as

they had not been granted such licences by the controlling
authority, or the 1 st appellant. Therefore the provisions of
subsection (4) of Section 29 of the Act which state that a licence of
a registered owner shall not be taken to be a lawful or bona fide
occupant, does not apply to the respondents.

In Kampala District Land Board and Chemical Distributors vs.

National Housing and Construction Civil Appeal No. 2 of 2004,
the facts of the case were similar to the present case. The
respondent in that case had occupied the suit land since 1970 and
had used the land as a play ground for children residing in its
adjoining estate, among other uses. It had fenced the land and
constructed a toilet on it. The 1 st appellant granted a lease over the
suit land to the 2 nd appellant ignoring the objections of the
respondent and local council officials of the area. The respondent
sued the appellants claiming that the grant of the lease to the 2 nd
appellant was unlawful and fraudulent. The respondents’ claim was
upheld. In my leading judgment, I observed,

“I have already held that the respondent had been in

occupation or possession of the suit land for more than twelve
years at the time of coming into force of the 1995
Constitution. The respondent had not only occupied the land
but also utilised it, without any challenge from Kampala City
Council. The respondent was entitled to enjoy its occupancy in
accordance with Article 237(8) of the Constitution and Section
31(1) of the Land Act, if the suit land was registered land.”

Since the respondents were lawful bona fide occupants, their

interest in the suit land could not be granted or transferred to a
third party without affording them the protection provided in the
Land Act. As this Court was held in Kampala District Land Board
and Chemical Distributors vs. National Housing and
Construction Corporation, (supra):

“A bona fide occupant was given security of tenure and his

interest could not be alienated except as provided by the law.
For instance the bona fide occupant could apply for a
certificate of occupancy under Section 33(1) of the Land Act. A
bona fide occupant could apply for a lease under Section 38 of
the Land Act. While the land occupied by a bona fide occupant
could be leased to somebody else, I think the first option
would have to be given to the bona fide occupant. As this was
not done in this case, the suit land was not available for
leasing to the 2 nd appellant.”

The holding in Kampala District Land Board vs. National

Housing Construction Corporation (Supra) applies with equal
force to the present. Moreover the rules of natural justice were not
followed in the instant case as the respondents were not given a fair
hearing before they were deprived of their interest in land. This was
in violation of the principles of natural justice contained in the
Constitution of Uganda, the Land Act and regulations made there
under. In the result I find no merit in ground 2 which should fail.

I shall now consider the third ground of appeal which is to the effect
that the learned Justices of Appeal erred in law and in fact when
they held that the certificate of title to the suit land had been
obtained fraudulently. Learned counsel for the appellants submitted
that fraud was not one of the issues framed for determination by
the court but both the High Court and Court of Appeal dealt with it
amid protests by counsel. Counsel conceded that the amended
plaint contained particulars of fraud but contended that fraud was
not strictly proved.

It was argued on behalf of the appellants that the respondents had

no recognized interest in the suit land, and in any case failure by
the District Land Board to give a hearing to the occupants did not
amount to fraud on the part of the allocatee because fraud must
reside in the transferee. Counsel further submitted that even if the
appellant was deliberately dishonest when he obtained a title
without consulting with the occupants and the authorities in the
area, sending surveyors to the land and deceiving the respondents
that they were looking for water pipes, and making compensation
cheques before the respondents were heard did not amount to
fraud. Counsel also argued that there was no legal requirement for
consulting anyone and that it was not the 2 nd appellant who sent
the surveyors, but the Kampala City Council to open up the plot
boundaries.

Finally counsel for the appellant submitted that according to

Section 136 of the Registration of Title Act, mere knowledge of
unregistered interest shall not of itself be imputed as fraud. It was
also submitted that a certificate of title is conclusive evidence of
ownership under Section 59 and cannot be impeached except for
fraud under Section 176 of the same Act. Counsel contended that
the respondents had no protected interest in land which could be
said to have been defeated and that the respondents’ remedy was to
seek adequate compensation for their structures, not cancellation of
the title of the 2 nd appellant.

Learned counsel for the respondents submitted that it was

fraudulent for the 1 st appellant to have leased out the suit land to
the 2nd appellant well knowing that the land was being occupied and
utilised by the respondents who were paying taxes and rates in
respect of the land. They pointed out that the 2 nd appellant was
aware of the respondents’ occupation and utilization of the suit land
as evidenced by his obtaining recommendations from a different
Local Council and attempting to compensate the respondents
arbitrary. Counsel contended that the respondents’ interest was
protected by Section 178 of the Registration of Titles Act which was
considered in the case of Marko Matovu vs. Mohammed Sseviiri
& Another (supra) where it was held that knowledge of other
person’s rights or claims over land and deliberate acquisition of a
registered title in the face of protests amounts to fraud.

Counsel submitted that the 2 nd appellant was deliberately dishonest

when he proceeded to obtain a title without consulting the
occupants and authorities of the area. Counsel argued that the
surveyors of the 2 nd appellant deceived the respondents that they
were looking for water pipes for a neighbouring zone.

As regards the issue of fraud, counsel for the respondents

contended that the particulars of fraud were property set out in the
amended plaint and that failure to frame a specific issue of fraud
was not fatal so long as the parties to the proceedings knew what
the real question between them was and evidence was taken on it
and the Court duly considered it. Counsel cited the case of Norman
Overseas Motor Transport (Tanganyika) Ltd (1959) EA 131 in
support of his submission.

Learned counsel for the respondents further submitted that a

certificate of title can be impeached for flouting the principles of
natural justice by failing to inform the respondents of the
application and giving them an option to apply for it. Counsel relied
on the case of Marko Matovu vs Mohammed Sseviiri (supra) and
Kampala District Land Board & Another vs National Housing
and Construction Corporation (supra) in support of his
submission.

Fraud was pleaded in the amended plaint, and its particulars

stated. The respondents adduced evidence to prove fraud by the
appellants and counsel addressed the issue in their submissions.
The trial Judge considered the matter and held that it had been
established. The Court of Appeal upheld the finding of the trial
Judge on the issue.

It is true that there was no specific issue framed on fraud as it

ought to have been done but it seems it was presumed to be part of
the third issue namely “whether the second defendant obtained
the certificate of title lawfully.” It is common knowledge that a
certificate of title obtained by fraud cannot be said to have been
obtained lawfully, and such a certificate is defeasible and liable to
be cancelled in accordance with Sections 64 and 176 of the
Registration of Titles Act. Under Section 64, the estate of a
registered proprietor is paramount except in the case of fraud.
Similarly, Section 176 provides that a registered proprietor is
protected against ejectment except in certain cases including where
a person has been deprived of any land by fraud by the registered
proprietor.

Fraud has been defined to include dishonest dealing in land or

sharp practice intended to deprive a person of an interest in land,
including unregistered interest. See Kampala Bottlers Ltd. vs
Damanico Ltd Civil Appeal No. 22 of 1992 (SC) Sajjaka Nalima vs
Rebecca Musoke Civil Appeal No. 2 of 1985 (SC) and Uganda
Posts and Telecommunications vs Lutaaya Civil Appeal No. 36 of
1995 (SC).
In Kampala District Land Board and Another vs National
Housing and Construction Corporation (supra), this Court
observed that it is now well settled that to procure registration of
title in order to defeat an unregistered interest amounts to fraud.
The Court quoted with approval the case of Katarakawe vs
Katwiremu (1977) H.C.B 187 where it was held that:

“Although mere knowledge of unregistered interest cannot be

imported as fraud under the Act, it is my view that where such
knowledge is accompanied by a wrongful intention to defeat
such existing interest that would amount to fraud.”

In her lead judgment Mpagi Bahigeine J.A. held that fraud had been
established because the suit land was not available for allocation to
the 2nd appellant, and that the respondents were entitled to the first
offer of the lease before anybody else could be considered. The
learned Justice of Appeal held that this action amounted to a
breach of the principles of natural justice and brought into play the
provisions of Section 178 of the Registration of Titles Act. The
learned Justice of Appeal observed:

“The second appellant was deliberately dishonest when he

proceeded to obtain a title without consulting with the
occupants and authorities of the area. The surveyors they sent
to survey the land had the audacity to deceive the respondents
that they were looking for water pipes for the neighbouring
Wilson Zone whereas not. Most surprisingly even the
compensation cheques for the respondents were made out long
before the respondents had been heard and listened to over the
matter.”

In her supporting judgment Mukasa-Kikonyogo D.C.J., agreed with

the conclusions reached by the learned Justice of Appeal and
added:

“Further, I agree with Bahigeine J.A. that there was evidence

of fraud. Clearly the grant of the lease to the 2 nd appellant
was intended to defeat the unregistered existing interest of
the respondents. The appellant knew the respondents’ interest
in the land but the latter were not given opportunity to be
heard on the matter which amounted to fraud.”

I entirely agree with the conclusions reached by the Court of Appeal

on the issue of fraud. There was a deliberate effort by the appellants
to sideline the respondents as bona fide occupants or tenants at
sufferance of the suit land. The respondents were not informed of
the 2nd appellant’s interest in leasing the land and given an option
to lease the land or to make any representations to protect their
interest. The appellants seem to have consulted officials of a
different Local Council and ignored the views of the proper Local
Council. The communication from the relevant Local Council of
Kasumba Zone clearly indicated that the suit land had been
occupied by the respondents for a long time. The respondents were
even offered compensation packages without negotiation or
consultation. In addition the relevant law and procedure were not
observed. I am therefore unable to fault the decision of the Court of
Appeal on this issue. I find no merit in ground 4 which should also
fail.

In the final ground of appeal, the appellants complain that the

learned Justices of Appeal erred in law and in fact when they
upheld the award of general damages. Learned counsel for the
appellants relied mainly on their submissions in the Court of
Appeal which in my view is a bad practice. Counsel submitted that
the Court of Appeal did not reevaluate the evidence before
summarily rejecting the grounds of appeal. They also contended
that the Court of Appeal ignored the complaint that the interest of
20% on general damages from the date of filing was too high, yet
counsel for the respondents conceded that the interest on general
damages should be between 6 – 8% from the date of judgment.

In reply counsel for the respondents submitted that the general

damages awarded were fair in the circumstances of wrongful
alienation of prime land located within the city whose value was
high. Counsel contended that the matter had taken a long time in
Court and the respondents had their structures on the suit land
destroyed by the 2 nd appellant on a number of occasions. It was
counsel’s submission that an award of damages is in the discretion
of the trial judge who gave reasons for the award and an appellate
Court should be slow to interfere with the award. Counsel relied on
the decision of this Court in the case of Byabalema & 2 Others vs
UTC (1975) Ltd Civil Appeal No. 10 of 1993 (SC) in support of his
submission.

With regard to the rate of interest, learned counsel for the

respondents pointed out that it was conceded in the Court of Appeal
that it should be 8% and that the interest should run from the date
of judgment until payment in full, and that this had already been
corrected by the Court of Appeal under the slip rule.

It is my opinion that no valid grounds have been advanced for

interfering with the award of damages made by the trial Judge and
confirmed by the Court of Appeal. As was held in the case of
Byabalema & 2 Others vs UTC (1975) Ltd. (supra):

“It is now a well settled principle that an appellate Court may

only interfere with an award of damages when it is
inordinately high or low as to represent an entirely erroneous
estimate. It must be shown that the Judge proceeded on the
wrong principle or that he misapprehended the evidence in
some material respect and so arrived at a figure which was
inordinately high or low.”

The complaint regarding the rate of interest and when it should run
has no merit as the same was dealt with by the Court of Appeal and
corrected through the slip rule. Accordingly, ground 4 should also
fail.
In the result, this appeal should substantially fail and I would
dismiss it with costs here and in the Courts below.
As the other members of the Court agree, this appeal is dismissed
with the orders I have proposed.

B J Odoki(CHIEF JUSTICE)

Kampala District Land Board and Anor v National Housing and

Construction Corporation ((Civil Appeal No.2 of 2004 )) [2005]
UGSC 20 (25 August 2005);

IN THE SUPREME COURT OF UGANDA

1. KAMPALA DISTRICT LAND BOARD)

2. CHEMICAL
DISTRIBUTORS) ....................................APPELLANTS

AND

NATIONAL HOUSING AND CONSTRUCTION CORPORATION) ...

RESPONDENT
JUDGMENT OF ODOKI CJ

This is an appeal from the judgment and orders of the Court of

Appeal of Uganda which allowed the respondent's appeal against
the appellants.

The facts as found by the courts below were that around 1996, the
respondent was granted a lease of land registered under Leasehold
Register Volume 1065 Folio 16 Plot No. M 239 at Bugolobi, a
suburb of Kampala City. The land was part of a statutory lease of
190 years granted to Kampala City Council by the Uganda Land
Commission. Adjacent to this land and also part of the statutory
lease was another piece of land known as Plot No. 157 Luthuli
Second Close, Bugolobi (hereinafter referred to as the suit land)

In 1970 the respondent constructed blocks of flats on its land

during which period it was allowed to utilize the suit land to
facilitate construction. It constructed on the suit land a latrine for
workers and subsequently built a fence around its block of flats
which enclosed the suit land. Between 1970 and 2000 the
respondent remained in possession of the suit land, and kept it
properly maintained for use as children's playground, for drying
residents' clothes, and passed water pipes underneath it. The public
latrine remained on this land in use by the respondent's workers
and Local Council residents during their meetings.

In June 1999, the respondent learnt that the suit land had been
offered on a lease to the second appellant. Despite protests from the
respondent and other residents of the Local Council of the area, the
1st appellant granted the lease. Subsequently, the 2 nd appellant
received a land title to the land now registered as Leasehold
Register Volume 2860, Folio 4, Luthuli Second Close, Bugolobi.

The respondent filed a suit against the two appellants seeking the
following orders:

(a) A declaration that all the land comprised in Leasehold Volume

2860 Folio 20 Plot 4 Luthuli Second Close at Bugolobi until 25
January 2001 described at Plot M 597 Luthuli Second Close
Bugolobi Estate, belongs exclusively to the respondent and
not any other party.
(b) A declaration that the grant of title over the suit land by the
first appellant to the second appellant was void ab initio as
there was no land available to the respondent for grant to 2 nd
respondent.
(c) A declaration that the second appellant's lease and title to
the suit land was null and void.
(d) An order directing the Registrar of Titles to cancel the
certificate of title to the suit land issued to the 2 nd appellant.
(e) A permanent injunction to issue against the second
defendant restraining it, its agents, servants and any other
person deriving title from the 2 nd defendant from entering
remaining or otherwise interfering with the suit property.
(f) An order for eviction of the second appellant from the suit
land.
(g) An order directing the first defendant to grant the suit land
to the respondent.

(h) An award of punitive and general damages, costs and any

other relief deemed fit by the court. In their written statements
of defence the appellants denied the respondent's claims. The
first appellant denied that the respondent ever fenced or was
in possession of the suit land, that the respondent was a bona
 fide purchaser or lawful or customary tenant on the suit land,
and also denied allegations of fraud
(b) The second appellant pleaded, inter alia, that the certificate
of title to the suit land was properly granted since the suit
land was available for leasing at the time of grant, and there
was no subsisting lease. It pleaded further that it was the
registered proprietor of the suit land which title was obtained
without fraud. It denied that the suit land was fenced by the
respondent or that it was in its possession and used by the
respondent's agents.

The High Court disallowed the respondent's claim and gave

judgment in favour of the appellants. The respondent
successfully appealed to the Court of Appeal which granted
the declarations and orders which had been sought in the
plaint. The appellants were dissatisfied with the decision of
the Court of Appeal. Hence this appeal.

The appellants preferred eleven grounds of appeal which are

stated as follows:

1. The learned Justices of Appeal erred in law when they failed to

consider the submission of the appellants.
2. The learned Justices of Appeal erred in law when they failed to
properly re-evaluate the evidence and when they made finding of fact
without evidence on record to support them.
3. The learned Justices of Appeal erred in law and fact when they
held that the respondent was in possession/occupation of the suit
land since 1970.
4. The learned Justices of Appeal erred in law and fact when they
held that the suit land was registered on the coming into force of the
1995 Constitution.
5. The learned Justices of Appeal erred in law and fact when they
held that the existence of a plot number for the suit land means that
it was registered.
6. The learned Justices of Appeal erred in law and fact when they
held that the suit land belongs to the respondent.
7. The learned Justices of Appeal erred in law and fact when they
held that the respondent was a bona fide occupant of the suit land.
8. The learned Justices of Appeal erred in law when they held that
the suit land was not available for leasing.
9. The learned Justices of Appeal erred in law and fact when they
held that the application and registration of the 2 nd appellant was
fraudulent.
10. The learned Justices of Appeal erred in law and fact when they
held that the doctrine of estoppel was not applicable against the
respondent.
11. The learned Justices of Appeal erred in law when they awarded
the respondent damages and ordered the 1 st appellant to lease the
suit land to the respondent.

The respondent filed a notice of grounds for affirming the decision

of the Court of Appeal consisting of the following grounds:

1. The suit land was part of land registered under the Statutory
Lease LRV 796 Folio 6 granted to the City Council of Kampala as
from 1st May, 1970 for a term of 190 years.
2. The respondent was a bona fide occupant of the suit land as
Kampala City Council, which had a Statutory Lease over the same till
October 1995 and never changed the respondent's occupancy.
3. The 1995 Constitution, though it abolished statutory leases, did
not declare the said leases to have been null and void ab initio.

The appeal was argued by Mr. Ojambo Robert with Mr. Paul
Muhimbura for the second appellant, and Mr. Nelson Nerima for the
first appellant. Mr. Geoffrey Mutawe and Mrs. M. Sakwa
represented the respondent.

Learned Counsel for the appellant argued grounds 1, 2 and 3

together, grounds 4,5, and 7 together, and finally grounds 8, 9 and
10 together. I propose to follow the same order except that I shall
deal with grounds 6 and 11 last.

Respondent's Possession or Occupation of the suit land:

The first three grounds of appeal criticised the manner in which the
Court of Appeal evaluated the evidence, the failure to consider the
appellants submissions and the holding that the respondent was in
possession or occupation of the suit land since 1970.

The main argument of Mr. Ojambo, learned counsel for the

appellant, on the three grounds was that the learned Justices of the
Court of Court failed to address themselves to the main issue which
was whether the respondent occupied or possessed the suit land
since 1970. This was the first issue framed at the trial. Instead,
learned counsel argued, the learned Justices of Appeal held that
there was overwhelming evidence that the suit land was in exclusive
possession of the respondent, whereas they were referring to
evidence of possession since 1999 when there was a site inspection
of the suit land. Learned counsel contended that there was no
evidence that the toilet was used after construction by their tenants
and workers. He submitted that Pw2 was only there in 1988 and
not in 1970, and Pw8 was not there since 1989.

Referring to admitted facts, he submitted that fact 11 was not

admitted and contended that the learned Justices of Appeal failed
to look for the evidence that the suit property was derived from the
statutory lease. He submitted that Article 285 of the Constitution
abolished statutory leases to urban authorities but this was not
considered by the Court of Appeal.

In reply Mr. Mutawe, learned counsel for the respondent, submitted

that ground one had no merit because the learned Justice of Appeal
had considered the appellants submission in their judgment. As
regards the evidence of a toilet, counsel submitted that the Minutes
of the 1st Appellant admit that there was a water borne toilet in the
middle of the plot belonging to the respondent. He referred to
evidence of Pw5 who testified that the workers continued to use the
toilet, and was also used during public functions.

As regards admission of fact No.11 counsel submitted that Plots

18/SW/1 and 18/SW/2 were adjacent to each other and that the
certificate of the respondent is derived from sheet 18/SW/1. In his
lead judgment Twinomujuni J.A. found overwhelming evidence that
the respondent was in exclusive possession of the suit land since
1970. He relied on the evidence of Pw1, Pw2, Pw5. Pw6, Pw8 and
Pw9. The learned Justice of Appeal held that their evidence showed
that between 1970 and 2001 when it was allocated to the 2 nd
appellant, it was used by the respondent to facilitate construction of
Bugolobi flats, to be used as a playground, and open space for the
children of tenants, to construct a public toilet for the respondent's
cleaners and to serve residents at Local Council meetings, to lay
sewage lines and water pipes of the respondents flats, and to
provide tenants space for drying clothes.
There was also evidence that the suit land was fenced off by the
respondent, that its mark-stones were all within the fence erected
by the respondent in 1970 and that the respondent's occupation
was never challenged by anyone till the land was allocated to the 2 nd
appellant. Minutes of the meeting of the 1 st Appellant Board held in
May 1999 (Exhibit P.12) confirmed that when the site (suit land)
was inspected on May 12, 1999 to assess the situation on the
ground, it was "confirmed that plot M597 appears to be part of
the National Housing and Construction Estate (block of flats)
though a copy of the deed plan did not indicate so. There
seemed to be no access to this plot. There was also a water
borne toilet in the middle of this plot belonging to the National
Housing and Construction Corporation. The plot looked well-
maintained".

Furthermore in a letter dated 22 nd September 1999, Kampala City

Council acknowledged that the respondent had installed water
pipes on the land in a letter they wrote to it requesting it "to remove
the water pipes you have installed on Plot M597 as soon as
possible".

The learned Justice of appeal concluded,

"Clearly these admissions put the matter of possession of the

suit before allocation, firmly in the hands of the appellant
(now respondent). The respondents (now appellants) themselves
did not call any evidence to challenge this state of affairs."

It is my view that the learned Justices of Appeal were justified in

coming to that conclusion. The evidence on records was adequately
reevaluated before coming to the findings to which I have already
referred.

There was ample evidence to support the findings that the

respondent had been in possession of the suit land for a long time
and had effectively utilised it for various purposes including
building a public toilet on it, passing under ground pipes under it,
and using it as a playground. Besides there was undisputed
evidence that the plot had been fenced with chain-link and steel
angle bars. This is the effect of the testimony of Nkoba Jack Vincent
(PW1) a Land Surveyor with the respondent, Ham Tumuhairwe
(PW2) the Housing Manager of the respondent and Baryayaga
Purunari (PW8), the Supervisor of Employees of the respondent.

PW2 and PW8 confirmed that the public toilet was constructed
around 1971 as part of the construction of the whole estate. They
also testified that the suit land was fenced though the Bugolobi
flats were then occupied by soldiers as barracks (from 1971 -1979).
These two witnesses were knowledgeable people who had worked
with the respondent for between 12 and 29 years. Their evidence
was not contradicted or discredited by the appellants who called no
evidence. Grounds 1, 2 and 3 have no merit and should therefore
fail.

Whether the land occupied by the respondent was registered

land.

Grounds 4, 5, and 7 raise the question whether the respondent was

a bonafide occupant of registered land. They challenge the findings
of the Court of Appeal that:

(a) the suit land was registered land on the coming into force of the
1995 Constitution,
(b) the existence of a plot number for the suit land meant that it was
registered, and

(c) the respondent was a bonafide occupant of the suit land.

Mr. Nerima for the appellants, submitted that the respondent was
not a bona fide occupant because the suit land was unregistered.
He referred to Article 237 (9) of the Constitution which empowered
Parliament to make a law regulating the relationship between a
bona fide occupant and a registered owner, and submitted that
Parliament had defined a bona fide occupant in Section 29 (2) (a) of
the Land Act as follows:

"(2) Bonafide occupant means a person who before the coming

into force of the Constitution-

had occupied and utilized or developed any land

(a
unchallenged by the registered owner or agent of the
)
registered owner for twelve years or more; or

had been settled on the land by the Government or an

(b) agent of the Government which may include a local
authority."

Learned Counsel pointed out that Section 31(1) of the Land Act
gives security of tenure to a tenant on registered land, and provides
that "A tenant by occupancy on registered land shall enjoy
security of occupancy on the land."

He contended that section 31(2) (3) (4) (6) and (7), and Section 33
(1) (2) and (7), Section 34(3) (4) and (5), Section 36(1), Section 37(2)
(a) and Section 38(2) (3) and (4) all transactions by a bona fide
occupant presuppose a registered owner. The respondent's
witnesses namely Pw1, Pw3 and Pw4, he argued, conceded that the
suit land was unregistered. Learned Counsel also contended that
the advocate who carried out the search testified that the plot had
never been registered. The advocate had lodged a caveat on behalf
of the respondent to stop the suit land being brought under the
Registration of Titles Act. He pointed out that the City Council of
Kampala was granted a lease in 1970.

Mr. Nerima, further contended that it was a misdirection for the

Court of Appeal to hold that the existence of a plot number meant
that the land was registered. It was his contention that under
Section 1 (2) of the Land Act, registered owner means "a registered
owner in accordance with the Registration of Titles Act." He
argued that registration occurs where a certificate of title is issued,
not in this case where the land had only been surveyed.

In the alternative, Mr. Nerima submitted that if the suit land was
registered in the name of the City Council, the lease was abolished
by Article 285 of the Constitution. According to the Land Act,
counsel contended, land which is unregistered was transferred to
the District Land Board. It was counsel's submission that when the
land was allocated in 1999 to the 2 nd appellant, there was no
registered owner. Therefore the respondent could not qualify to be a
bona fide occupant, he concluded.

For the respondent, Mr. Mutawe submitted that the City Council
had title to the suit land which was registered. He referred to the
evidence in Exhibit P. 13, the Minutes of the Meeting of the 1 st
appellant, where the City Advocate advised the 1 st appellant that the
City Council was the registered proprietor of the suit land and it
never challenged the respondent's occupancy. Minute
KDLB.23/8/2000 read in part,

"At the request of the Board, the City Advocate in her Memo
dated November 1, 1999, advised that Section 30(2) (a) the
Land Act No.16 1998 protected National Housing Corporation
as a bonafide occupant. Before the coming into force of the
Constitution 1995, Kampala City Council was the registered
owner of the land under a statutory lease and there were no
records showing that it ever challenged the corporation's
occupancy. In this regard, National Housing Corporation was
in the category of "bonafide" occupant and all rights accruing
to a bonafide occupant accrue to National Housing
Corporation."

Learned Counsel also referred to the existence of Exhibit P.10 which

is a copy of a certificate of title issued to Kampala City Council in
1970 in respect of the land comprised in Leasehold Register Volume
796 Folio 6 with an accompanying copy of a Statutory Lease which
covered the suit land. It was counsel's submission that these two
exhibits contained admissions under Section 19 of the Evidence Act
which no oral evidence could displace. He argued that although on
the coming into force of the Constitution, statutory leases were
abolished, there was no law which deprived those having rights in
land of their rights.
Counsel contended further that the Land Act 1998 protected the
respondent as a bona fide occupant. Before coming into force of the
Constitution 1995, Kampala City Council was the registered owner
of the land under a statutory lease and there were no records
showing that it ever challenged the respondent's occupancy. In this
regard, the respondent was in the category of "bona fide occupant"
and rights accruing to a bona fide occupant, accrue to the
respondent.

In dealing with the question whether the respondent was a bona

fide occupant of registered land, Twinomujuni, JA, in his lead
judgment observed,

"in the instant case, the appellants proved that it had utilised
the suit land for 25 years unchallenged before coming into
force of the 1995 Constitution. The learned trial judge erred to
hold that the appellant was not a bona fide occupant. He
seems to have arrived in this conclusion basing on his earlier
finding that the suit land was not registered and that
therefore, there was no registered owner. With respect, that
holding was not correct as I have indicated when considering
ground two above. The mere fact that the suit land was known
as Plot M597 Luthuli Second Close Bugolobi between 1970 and
2001 suggests that the plot was registered. If this inference is
correct then it must have been registered in the names of
someone."

The second ground of appeal in the Court of Appeal which the

learned Justice of Appeal was referring to was to the effect that the
trial judge had erred in holding that there was no registered owner
of the suit land on the day the 1995 Constitution came into force.
The learned Justice of Appeal considered the facts which had been
admitted at the trial which were:

"9. The 2nd defendant's Title LRV 2860 Folio 20 issued on

25/01/2001 is derived from Sheet No.71/1/18/Sw/2.
10. Kampala Municipal Council was the Registered Proprietor
of Land under a Statutory Lease LVR 254 Folio 6.
11. The Sheet No.71/1/118/SW/12 is reflected on the key plan
of the land under Statutory Lease 254 Folio 6 above."

The Learned Justice^ of Appeal then concluded:

"These three admitted facts clearly establish that the suit

land was the registered property of Kampala Municipal
Council. Under Section 56 of the Evidence Act, those facts once
admitted needed no further proof and were no longer in issue.
I would respectfully disagree with the learned trial Judge's
holding that "there is no evidence at all of registration of the
land prior to 25 th January 2001". I would hold that the suit
land formed part of the Statutory Lease which was granted to
Kampala Municipal Council and was therefore registered as
its property. I find no evidence on record that could contradict
the above holding of fact. The logical inference from this
holding is that on the coming into force of the 1995
Constitution, the suit land was registered property of
Kampala City Council. This ground of appeal succeeds."

I am unable to fault the conclusions reached by the learned Justice

of Appeal, with whom other members of the Court of Appeal agreed.
I have already held that the respondent had been in occupation or
possession of the suit land for more than twelve years at the time of
coming into force of the 1995 Constitution. The respondent had not
only occupied the land but had also utilised it, without any
challenge from Kampala City Council. The respondent was entitled
to enjoy its occupancy in accordance with Article 237(8) of the
Constitution and Section 31(1) of the Land Act if the suit land was
registered land.

The evidence on record was, in my view, sufficient to establish that

the suit land was registered. 11 was not merely surveyed land as
submitted by learned counsel for the appellants. The suit land was
adjacent to the lease granted by Kampala City Council as the urban
authority to the respondent and registered on 1 May 1969 for 99
years, on which the various blocks of flats were constructed. The
head Statutory Lease granted to Kampala City Council by the
Uganda Land Commission on 17 December 1970 was included both
the lease granted to the respondent comprised in Leasehold register
Volume 796 Folio 6 and the unallocated suit land adjacent to it,
marked as Plot M597. The Statutory lease comprised of:

"All that part of public land contained within the present

gazetted boundaries of the City of Kampala shown for the
purposes of identification only on the plan marked "A" hereto
annexed and thereon coloured blue (but save and except the
land coloured green on the 24 plans marked "B" "C" "D" "DI"
"D2" "E" "F" "G" "H" "11" "12" "J" "K" "L" "M" "N" "O" "P" "Q" "R" "S"
"T" "W" "X" and "Y" here annexed). TO HOLD the same to the
Lessee for the term of 190 (one hundred and ninety years and
10 months from the 1st day of May 1970

The land granted to Kampala City Council was delineated and

divided into plots which were marked. It is clear from the key plan
of the land comprised in this folio (except mailo and freehold land
and shown in blue) that the suit land was included and marked as
Plot No.M597. This plot also reflected in Sheet No.71/1/18/SW/2
which is also reflected in the Statutory Lease Volume 525 Folio 6.

In my view, therefore, the suit land formed part of statutory lease

granted to Kampala City Council and was registered in the
Council's name. Accordingly, the respondent was a bona fide
occupant of registered land at the time the 1995 Constitution was
made.

Mr. Nerima, learned counsel for the appellant, argued, in the

alternative, that the 1995 Constitution abolished statutory leases
and therefore the respondent was not a bona fide occupant of
registered land.
In reply Mr. Mutawe for the respondent conceded that on the
coming into force of the Constitution, statutory leases were
abolished, but contended that this did not mean that all those
having rights in the land comprising the statutory lease lost their
rights. Indeed in the third ground for affirming the decision of the
Court of Appeal, the respondent contends that although the 1995
Constitution abolished statutory leases, it did not declare the said,
leases to have been null and void ab initio.

I think it is well settled that the Constitution abolished statutory

leases. Article 285 of the Constitution provides,

"Upon the coming into force of this Constitution and subject to

the provision of paragraph (a) of clause (2) of Article 237 of
the Constitution, statutory leases to urban authorities shall
lease to exist."

The effect of this provision is that the statutory lease granted to the
City Council by the Uganda Land Commission in 1970 was
extinguished on the coming into force of the Constitution.
Kampala City Council ceased to be the registered owner of the suit
land on the coming into force of the Constitution. That would mean
that the respondent ceased to be a bona fide occupant of the City
Council, as the registered owner.

The fundamental question to be answered is what happened to the

land previously held by the City Council as a controlling authority,
and those interests granted or held under the extinguished
statutory lease.
It must be recognised that the Constitution made far reaching
changes in the system of land holding in Uganda and the manner of
control and management of land. By virtue of Article 237(1) of the
Constitution,

"Land in Uganda belongs to the citizens of Uganda and shall

vest in them in accordance with the land tenure systems
provided for in this Constitution."

The land tenure systems provided are customary, freehold, mailo

and leasehold . Provisions were made in the Constitution to protect
the rights of those tenants in occupation of registered land.
Institutions for holding and allocation of land, and for effective
resolution of land disputes were established. Subsequently the
Land Act was made to give effect to the provisions of the
Constitution. Among the institutions established were the Uganda
Land Commission, the District Land Boards and the Land
Tribunals.

The main function of the Land Commission was to hold and manage
any land vested in or acquired by the Government of Uganda. The
functions of a District Land Board included holding and allocation
of land in a district which is not owned by any person, and to
facilitate the registration and transfer of interests in land.

It seems to me, therefore, that the District Land Boards became

successors in title to controlling authorities or urban authorities in
respect of public land which had not been granted or alienated to
any person or authority. The District Land Boards became
successors by operation of law because land was vested in them by
law, not by grant, transfer or registration, under Section 59(8) of
Land Act.

In the instant case, it is common knowledge that the suit land was
vested in the Kampala District Land Board which had jurisdiction to
allocate it, if it was not owned by any person or authority. It was
argued for the respondent that it was an owner by virtue of being a
bona fide occupant of the suit land for over twelve years. Under the
Constitution and the Land Act (Cap.227) the respondent would
ordinarily have enjoyed the protection granted to such tenants, had
the statutory leases not been abolished. But the respondent
contends that the abolition of the statutory lease under which it
held the suit land did not mean that its interest in land was thereby
abolished or extinguished.

The implications of the abolition of statutory leases have not been

determined and in my view this remains a gray area. I am unable to
hold that the rights of the respondent as a tenant in possession who
held adversely to the City Council for a long time were automatically
extinguished on the abolition of the statutory lease. In my opinion,
the respondent could claim the rights and benefits accruing to a
bona fide occupant of a registered owner, who must be deemed to
be the Kampala District Land Board under Section 59(8) of the Land
Act which provides:

"The board shall hold in trust for the citizens the reversion on
any I ease to which subsection (1) (c) relates and may exercise
in relation to the lease and the reversion the powers of the
controlling authority under the Public Lands Act 1969, as if
that Act had not been repealed; but subject to the foregoing,
that Act shall in respect of any such lease or reversion, have
effect with such modifications as may be necessary to give
effect to this Act and subject to the provisions of the
Constitution."

Accordingly I hold that grounds 4, 5 and 7 have no merit and

should fail. I would hold that the three grounds affirming the
decision of the Court of Appeal should succeed.

Whether the grant of the lease was fraudulent:

In grounds 8, 9 and 10, the appellants complain that the Court of

Appeal erred in law in holding that the suit land was not available
for leasing, that the application and registration of the 2 nd appellant
was fraudulent and that the doctrine of estoppel was not applicable
against the respondent. Arguing these grounds on behalf of the
appellants, Mr. Muhimbura submitted on ground 8 that since the
land in dispute was not registered nor owned by the respondent in
accordance with the law, the land suit land was available for leasing
by the 1st appellant in accordance with Article 241(1) (a) of the
Constitution and Section 59(1) (a) of the Land Act. Counsel
contended that even if the respondent had been a bona fide
occupant it would not preclude the 1 st appellant from allocating
land to the 2nd appellant, but in this case since the respondent was
not a bona fide occupant it could not enjoy security of tenure.

The Court of Appeal held that the respondent was a bona fide
occupant of the suit land and therefore the land was not available
for leasing without reference to the appellant. I agree with that
holding. That holding is consistent with the finding that the
respondent was a bona fide occupant of the suit land.

A bona fide occupant was given security of tenure and his interest
could not be alienated except as provided by the law. For instance,
the bona fide occupant could apply for a certificate of occupancy
under Section 33(1) of the Land Act. A bona fide occupant could
apply for a lease under Section 38 of the Land Act. While the land
occupied by a bona fide occupant could be leased to somebody else,
I think that the first option would have to be given to the bona fide
occupant. As this was not done, in the present case, the suit land
was not available for I easing to the 2 nd appellant. G round 8 should
therefore fail. With regard to the holding that the 2 nd appellant
acquired the suit land by fraud, Mr. Muhimbura submitted that
Twinomujuni, J.A. in his lead judgment based his finding of fraud
on the three grounds. The first ground is that both appellants knew
that the suit land was in possession of the respondent the time it
was registered in the name of the 2 nd appellant. Counsel argued
that there was no evidence in the High Court that the two
appellants knew that the respondent was in possession of the suit
land. The second ground was that the respondent protested to the
1st appellant but the protests were ignored. Muhimbura submitted
that the protests came in 2001 after the allocation of the suit land
to the 1st appellant in 1999.
The third ground on which fraud was based was that no proper
procedure was followed in granting and transferring the land to the
respondent. Learned counsel argued that the suit land was
allocated in 1999 but the Land Regulations were made in 2001, and
were therefore inapplicable.

Mr. Mutawe for the respondent submitted that the lease to the 2 nd
appellant was irregularly accepted. He pointed out that the 2 nd
appellant was required to accept the offer within one month from
the date of offer which was 2 nd June 1999. The offer should
therefore have been accepted by 3 rd July 1999. However by the time
counsel for the respondent wrote the letter of protest to the 1 st
appellant on 19 July 1999, the 2 nd respondent had not accepted the
offer as stipulated in the lease offer. Mr. Mutawe further submitted
that there was plenty of evidence to establish fraud. The first piece
of evidence he referred to was Exh. P1 which was a letter dated July
29, 1999 from the 2 nd appellant to the 1 st appellant where the
former claimed that the suit land was part of the late Muzee
Semakula's kibanja which forms part of the respondents title, and
that there was a house at the time the land was surveyed and that
is why it was not included in the title of the respondent. In that
letter, the 1st appellant claimed that the respondent was trying to
steal Muzee's Land. The 1st appellant said they were willing as a
family to negotiate with respondent if the latter wanted to expand
their development.

The second piece of evidence of fraud according to learned counsel,

was Exh.P.2, a letter from the Managing Director of the 1 st
appellant, Silver Byaruhanga dated August 8, 1999 addressed to
the 2nd appellant which when considered together with Exh. P.12
which contains minutes of the meeting of the 1 st appellant clearly
showed that there was no access road to the suit land. The minutes
stated that "There also seemed to be no access to this plot." Mr.
Mutawe submitted that the 2 nd appellant confessed to have bribed
the workers of the 1 st appellant in order to grant him a road. This
was contained in Exh.P.2 where the 2 nd appellant stated,

"When they were surveying, I approached the people on site.

We talked to each other and I asked them a tricky question,
"Does your plan also provide new roads? And they said where
necessary. I also asked them to get me a plan for that land
and they told me that they can do it if I have interest. After
the job, I indeed gave them a tip of 1,500,000/=. To me I was
buying the road and I got my deal and I am left with a balance
of 500,000/= to be paid later."

The third piece of evidence is Exh.p.3 which is a letter dated 5

October 2000 from the 2 nd appellant to the 1 st appellant applying for
change of status and revision of premium and ground rent on the
suit land. The 2nd appellant requested the 1 st appellant to "revisit
our case and approve our application as kibanja for Chemical
Distributors thus giving us fresh terms."

Mr. Mutawe pointed out that the change of status was explained in
Minute KDLB52/58/99 where it was stated that the 2 nd appellant
had provided evidence in support of their customary
ownership/bona fide purchaser which included the original kibanja
owner dated 23.7.1971 and two sale agreements dated 24.4.1984
and 1.2.1991, thus satisfying the 1 st appellant that the 2 nd appellant
had acquired the land from the original kibanja owners. The first
appellant therefore confirmed the earlier allocation under Minute
KDLB 53/53.8/99 of 22.5.1999 and rejected the application of the
respondent on the ground that when it visited the suit land, on
August 18, 1999, they found the existing facility which was a toilet,
not in use and neglected. Mr. Mutawe submitted that this showed
that the advice of the City advocate was correct and that is why the
2nd appellant was asked to be granted the suit land as a customary
tenant, and it was duly granted as a kibanja.

The fourth evidence of fraud according to learned counsel is that

under Exh. P.12 it was claimed in 1 st appellant's minutes that the
toilet was water bore whereas according to a letter dated 29 June
1999, the toilet was not in use, and the plot was underutilized. This
could not be true given the fact that people were staying there.

It was submitted by counsel that the fifth piece of evidence was

admitted facts No.34 and No.37 which indicated that the 1 st
appellant organized site inspection and went to the suit land
without informing the respondent. Furthermore, the respondent's
protestations were ignored, and yet both appellants knew of the
respondent's interest. He submitted that the appellants were
consciously defeating the unregistered interest of the respondent,
and yet the respondent was entitled to a hearing before the
application of the 1 st appellant was granted.

In his lead judgment, Twinomujuni J.A, took into account the fact
that the appellants knew that the suit land was in possession of the
respondent and despite protests from the respondent and residents
of the estate of the respondent, the protests were ignored as the
respondent was not given any hearing before its interest was
transferred to the 2 nd appellant. The learned Justice of Appeal also
held that if a person procures registration to defeat an existing
unregistered interest on the part of another person of which he is
proved to have knowledge, then such a person is guilty of fraud on
the authority of John Katarikawe vs William Katweremu &
Others (1977) HC.B.187. He also held that a deliberate failure to
follow prescribed procedure or to deceive that the land is available
for leasing or to deny the respondent a fair hearing amounted to
fraud. The learned Justice of Appeal held that the fraud alleged in
this case was also attributable to the transferee, the 2nd appellant.
The learned Justice of Appeal concluded,

"By insisting on registration of the suit land in favour of the

2nd respondent in total disregard of the appellants
unregistered interest, which they were very much aware of
and by failing to follow the right procedure prescribed by law
for transfer of such unregistered interest the respondents (now
appellants) were guilty of fraud, which defeats the act of
registration."

With respect, I am unable to fault the conclusion reached by the

learned Justice of Appeal with whom the other members of the
Court of Appeal agreed. As both the learned counsel for the
respondent and the learned Justice of Appeal pointed out there was
ample evidence of fraud. From the evidence it is clear that the 2 nd
appellant went out of its way to defeat the interest of the
respondent with the support of the 1 st appellant. The status of the
suit land seems to have been changing to suit the interests of the
appellants, contrary to the legal advice of the City Advocate. The
proper procedures for granting leases over unallocated land were
flouted in favour of the 2nd appellant.

On the other hand, the respondent was not given opportunity to be

present during the site inspection or to submit objections or to be
heard before lease was granted. The respondent only took initiative
to protest the allocation of the suit land to the 2 nd appellant, and its
protest, and that of the residents of the area, were summarily
rejected. In my view the respondent should have been informed of
the intention to grant the lease of the land in its possession, and
given the first option to apply for it, if the 1 st appellant wanted the
suit land to be fully developed.

It is well settled that a certificate of title is indefeasible except on

ground of fraud. Section 64(1) of the Registration of Titles Act
(Cap.230) provides:

"Notwithstanding the existence in any other person of any

estate or interest, whether derived by grant or otherwise,
which but for this Act, might be held to be paramount or to
have priority, the proprietor of land or of any estate or
interest in land under the operation of this Act shall, except in
case of fraud, hold the land or estate or interest in land
subject to such encumbrances as are notified on the folium of
the Register Book constituted by the certificate of title; but
absolutely free from all other encumbrances whatsoever,
except the estate or interest of a proprietor claiming the same
land under a prior registered certificate of title, and except as
regards any portion of land that by wrong description of
parcels or boundaries is included in the certificate of title or
instrument evidencing the title of such proprietor not being a
purchaser for valuable consideration or derived from or
through such a purchaser."

Therefore under Section 176 of the Registration of Titles Act, a

registered proprietor is protected against ejectment except in certain
cases, including fraud.

The indefeasibility of title on ground of fraud has been considered

in a number of decisions in our Courts. In Kampala Bottles Ltd vs
Daminico(U) Ltd Civil Appeal No. 22 of 1992, this Court approved
the definition of fraud by the trial judge as follows:
"It is well established that fraud means actual fraud or some
act of dishonesty. In Waimiha Saw Milling Co. Ltd vs Laine
Timber Co. Ltd (1926) AC 101 at p.106, Lord Buchmaster said,
'Now fraud implies some act of dishonesty.' Lord Lindley in
Assets Co. vs Mere Roihi (1950) AC 176 states, ' Fraud in these
actions (i.e. actions seeking to effect (sic) a registered titles)
means actual fraud, dishonesty of some sort or what is called
constructive fraud an unfortunate expression and one very apt
to mislead, but often used for want of a better term, to denote
transactions in equity similar to those which flow from fraud."

It is now well settled that to procure registration of title in order to

defeat an unregistered interest amounts to fraud. In Marko Matovu
& Others vs Mohammed Ssevivi and Another. Civil Appeal No. 7
of 1978 (CA), Sijaka Nalima vs Rebecca Musoke. Civil Appeal No.
12 of 1985 (SC) and Uganda Posts and Telecommunications vs
Lutaaya Civil Appeal No.36 of 1995 (SC) this Court approved the
holding of the High Court in Katarikawe vs Katwireme (Supra)
where it was stated:

"Although mere knowledge of unregistered interest cannot be

imputed as fraud under the Act, it is my view that where such
knowledge is accompanied by a wrongful intention to defeat
such existing interest that would amount to fraud. In the
absence of a statutory definition of fraud, I would adopt the
definition in a similar Kenyan Statute which defines fraud as
fraud shall on the part of a person obtaining registration
include a proved knowledge of the existence of an unregistered
interest on the part of some other person, whose interest he
knowingly and wrongfully defeats by such registration." I take
this view because I doubt whether the framers of the act ever
intended to encourage dishonest dealings in land as manifest
in this case."

In the instant case, there was ample evidence of fraud attributable

to both appellants that the grant and registration of the suit land in
the name of the 2 nd appellant was intended to defeat the
unregistered interest of the respondent, and the Court of Appeal
was justified in coming to that conclusion. Accordingly ground 9
has no merit and should fail.

In ground 10, the complaint is that the learned Justices of the

Court of Appeal erred in law and fact when they held that the
doctrine of estoppel was applicable. Mr Muhimbura for the
appellants adopted his submissions in the Court of Appeal. He
contended that by claiming in the plaint that it was a customary
tenant and later abandoning this claim, the respondent was not
sure of its interest in the suit land. It was his submission that if the
respondent knew that it had an interest capable of being protected
by law, it would not have applied to the 1 st appellant for a lease over
the suit land. Counsel a Iso contended that the respondent lodged a
caveat a nd left it to lapse, and never took steps to stop the
registration of the suit land.

In reply Mr. Mutawe submitted that estoppel did not arise in this
case since the case for the respondent was that it had occupied the
suit land for 29 years and its lodging the caveat confirmed its claim
to the suit land for which they actually applied to be granted a
lease.

In his judgment, Twinomujuni JA, held that in light of his finding

that the registration of the 2 nd appellant was tainted with fraud, the
doctrine of estoppel did not arise. I am unable to see how the
doctrine of estoppel applied against the respondent. The fact that
the respondent applied for a lease on the suit land on 20 July 1999
did not mean that they had no prior interest in the land.

The application by the respondent was made after the offer of a

lease to the 2 nd appellant by the 1 st appellant which summarily
rejected it as an appeal under Minute KDLB 23/8/2000 in
November 2000. There was nothing in the application to estop the
respondent from applying for the suit land. It did not claim to be a
customary tenant. Neither did the lapse of the caveat indicate that
the respondent ceased to have a claim in the suit land. I am unable
to hold that the Court of Appeal erred in holding that the doctrine of
estoppel did not apply against the respondent. Ground 10 should
therefore fail.

Reliefs Granted:

The appellants complain in ground 6 that the Court of Appeal erred

in law and fact when they held that the land belongs to the
respondent. In ground 11, the complaint is that the Court of Appeal
erred in law when they awarded the respondent damages and
ordered the 1st appellant to lease the suit land to the respondent.

Mr. Nerima, for the appellants, submitted that a bona fide

occupancy is not ownership and therefore the suit land cannot
belong to the respondent. He argued that ordering the 1 st appellant
to lease the suit land to the respondent was an error in law and in
fact. It would have been a proper relief if the action was for specific
performance. All the Court could do was to order the 1 st appellant to
deal with the application of the respondent. The Court could not
fetter the discretion of the 1 st appellant. Counsel cited the case of
Registered Trustees of Kampala Institute vs Departed Asian
Property Custodian Board Civil Appeal No. 21 of 1993 (SC) in
support of his submissions.

In concluding his judgment, Twinomujuni JA made the following

order:

"in the result, I would allow this appeal, set aside the
judgment of the High Court dated 3 rd December 2001 and enter
judgment in favour of the appellant in terms as prayed in the
plaint."

In the plaint the respondent prayed for a long list of reliefs which
consisted of the orders specified at the beginning of this judgment.
The order complained of was listed under paragraph (g) which was
an order directing the 1 st appellant to grant the suit land to the
respondent. There was no complaint with the rest of the orders
granted by the Court of Appeal, which should stand. There was a
complaint in ground 11 that the Court of Appeal erred in awarding
the respondent damages. However, the Court of Appeal did not
make a specific order in respect of general or punitive damages. The
Court of Appeal did not assess any such damages. It is not clear
what was the basis or the justification for the claim for such
damages. I find not evidence or grounds to justify the award of such
damages. I agree with counsel for the respondent that no such
damages were awarded by the Court of Appeal, and none were
awardable. Therefore the prayer in paragraph (h) in the plaint
cannot be granted.

I have already held that the respondent was a bona fide occupant of
the suit land. The respondent may not have been a registered owner
but the respondent had a recognized or even registrable interest in
the suit land. For this reason it can be said that the suit land
belonged to the respondent as tenant in possession.

However, the interest possessed by the respondent did not entitle it

to automatic grant of a lease over the suit land. In my view the
respondent was entitled to apply for a lease over the suit land and
to be given the first option to lease the land. I agree that the 1 st
appellant had discretion in granting leases but the discretion had to
be exercised fairly and justly in accordance with the law.

I would therefore modify the order granted in paragraph (g) in the

plaint to read as follows:
"(g) An order directing the 1 st appellant to give due
consideration to the respondent's application for a lease over
the suit land including giving it priority in granting the
lease."

I find no merit in grounds 6 and 11 which should substantially fail.

In the result, this appeal should be dismissed with costs in this
Court and the Courts below. As the other members of the court also
agree this appeal is dismissed with costs in this court and courts
below.

Dated at Mengo, this 25 th day of August 2005

Jacob Mutabazi Vs. Seventh Day Adventist Church & Anor (Civil
Suit No. 054 Of 2009) [2011] UGHC 53 (29 April 2011);

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 54 OF 2009

JACOB
MUTABAZI ..........................................................
PLAINTIFF

VERSUS

1. THE SEVENTH DAY ADVENTIST CHURCH

2. DAN NAMASWALA .....................................................

DEFENDANTS

BEFORE: HON. LADY JUSTICE MONICA K. MUGENYI

JUDGMENT

The facts of this case are that the plaintiff, a one Jacob Mutazindwa
sued the first and second defendants for trespass and/or fraudulent
acquisition of land situated at Kireka hill. The plaintiff contends
that he is a bonafide occupant and thus lawful owner of land
currently held by both defendants, being the heir and sole surviving
descendant of his father, a one Enoch Mwambali, from whom he
purportedly derives legal title to the land.

No evidence was adduced before this court to prove that the plaintiff
is indeed Mwambali’s customary heir. However, according to the
record of my sister judge, Lady Justice Faith Mwondha who handled
the case previously, the plaintiff had secured a certificate of no
objection to the grant of letters of administration and was on course
to secure Letters of Administration in respect of Mwambali’s estate.
I do take judicial notice of this fact.

On the question of the locus standi of a non-holder of Letters of

Administration to institute proceedings in respect of the estate, the
Supreme Court in the case of Israel Kabwa vs Martin Banoba
Masiga Civil Appeal No.2 of 1995 (SC) upheld the holding of the
trial judge that the respondent’s locus standi was founded on his
being the heir and son of his late father. Tsekooko JSC held as
follows:

“The editors of Williams and Mortimer on Executors,

administrators and Probate (15th Edition of Williams on
Executors and 3 rd Edition of Mortimer on Probate) at pp. 84 and
454 et seq show that an intending applicant for Letters of
Administration can institute an action to stop trespass to a
deceased’s land. .... (This ground) would still fail, in my view,
even if no letters of administration had been obtained because
the respondent’s right to the land and his developments
thereon do not depend on letters of administration.”

On the basis of the foregoing ruling, the plaintiff does have locus
standi to institute the present proceedings.

The 1st defendant, on the other hand, maintains that as the

registered proprietor of land comprised in Block 232 plot 814
located at Kireka, it is the lawful owner of the said land and denies
any allegations of trespass thereto.

No written statement of defence was filed by the second defendant

as required by O.9 r.1 of the Civil Procedure Rules (CPR), neither is
specific mention made as to his proprietary interest in the suit
premises save for an averment in paragraph 4(c) of the plaint where
the plaintiff seeks the “cancellation of a certificate of title of the
1st defendant and of the 2 nd defendant where it is found to
exist.”

I shall address the status of the 2 nd defendant in this suit

forthwith. A look at the CPR is instructive in this regard.

O. 4 r.1 of the CPR requires ordinary civil suits, such as the

present one, to be instituted by plaint. O.5 r.1 provides for service
of summons upon a defendant against whom a suit has been
instituted, requiring him/ her to file their defence thereto. The time
within which such summons must be filed upon a defendant is
stipulated in O.5 r.2 and the mode of service is outlined in rules 8,
9 and 10 of the same Order.

In the present case the plaintiff duly served summons upon both
defendants on or about 27 th March 2009. Curiously, although both
defendants defaulted on filing their defences within the time
stipulated in the summons, the 1 st defendant’s written statement of
defence was filed and duly received by court on 13 th May 2009.
Even more perturbing, having accepted the 1 st defendant’s written
statement of defence filed in May 2009, on 16 th July 2009 an Order
was granted under O.9 r.10 of the CPR permitting the plaintiff to
proceed with the hearing of the case. Counsel for the plaintiff did
not raise this issue during the hearing of this case or at all.

I am mindful of Article 126(2)(e) of the 1995 Constitution that

enjoins courts to administer substantive justice without undue
regard to technicalities. I also note that land disputes in Uganda
are sensitive and potentially acrimonious matters. Accordingly,
there is need to have these disputes dealt with as judiciously and
conclusively as possible. To that extent I am of the view that it
would serve in the interest of justice, as far as possible, for courts
adjudicating land disputes to uphold the tenet of natural justice
that enjoins both parties to a dispute to be accorded a fair
opportunity to be heard.

In the premises, I rule that given the receipt and stamping of its
written statement of defence by the court the 1 st defendant is
deemed to have a right of appearance before this court.
Accordingly, I do accept the evidence that was adduced on its
behalf.

With regard to the 2 nd defendant, attempts to serve summons on

him in the manner prescribed by Order 5 were unsuccessful, and
an order for substituted service granted on 24 th April 2009 did not
yield any results either. There is evidence on the court record that
substituted service was indeed effected. This evidence is in form of
newspaper cuttings, as well as an affidavit of service of summons by
a one Moses Ashaba dated 14 th May 2009 and duly compliant with
O.9 r.5 of the CPR.

In the absence of any response to the service by the 2 nd defendant

the present suit did proceed under O.9 r.10 of the CPR as had been
ordered in the Deputy Registrar’s Order of 16 th July 2009. I hasten
to add that under the precincts of that rule, the plaintiff is still
required to prove his case against the 2 nd defendant to the required
standard – balance of probabilities.

I now revert to a consideration of the substantive suit.

Section 101(1) of the Evidence Act provides as follows:

“Whoever desires any court to give judgment as to any legal

right ... dependant on the existence of facts which s/he asserts
must prove that those facts exist.”

Section 110 of the Evidence Act provides thus:

“When the question is whether any person is owner of anything
of which s/he is shown to be in possession, the burden of
proving that s/he is not the owner is on the person who affirms
that s/he is not the owner.”

The sum effect of the foregoing provisions of the Evidence Act is to

lay the onus of proof in the present case squarely on the plaintiff.
First, the plaintiff is required to prove the assertions he makes in
the plaint with regard to his purported ownership of the suit
premises. Secondly, he bears the burden of proving that the
defendants, though armed with legal title and/ or possession of the
suit premises, are nonetheless not the owners of the land. The
plaintiff must prove his case on a balance of probabilities.

Pursuant to a scheduling conference held on 2 nd August 2010 both

parties agreed to the following facts, which shall require no further
proof:

1. That the 1st defendant holds a certificate of title to the land

comprised in Block 232 plot 814 at Kireka, which title was acquired
in 1989.

2. That the plaintiff’s father was the 1 st defendant’s employee,

died in 1974 and was buried somewhere in Kireka.

The parties framed 3 issues for determination by this court.

1. Whether the plaintiff has any interest in the suit land.

2. Whether the 1 st defendant’s certificate of title was acquired

fraudulently.

3. Available remedies.

I shall address the issues in that order.

Issue No. 1 – whether the plaintiff has any interest in the suit land.

The plaintiff testified in this case as PW1. He did not testify to

having a certificate of title to the suit premises. In the plaint he
claims to be a bonafide occupant and owner of the land. During his
testimony he stated that he has a kibanja interest in the suit land.

A brief look at the land in dispute is pertinent. The suit land

entails 2 pieces of land that are allegedly owned by the 1 st and 2nd
defendants respectively. The evidence on record indicates that the
1st defendant does have a certificate of title to its piece of land,
which is registered as Block 232 plot 814. No evidence was
adduced to prove whether or not the 2 nd defendant possesses a
certificate of title to his land. A visit to the locus in quo revealed
that the 2 pieces of land are adjacent to each other but the land
attributed to the 2nd defendant is undeveloped.

Section 2 of the Land Act provides for four modes of land

ownership – customary, freehold, mailo and leasehold. The
certificate of title to the 1 st defendants land demarcates the land
holding as private mailo land. According to the evidence of PW3,
the original owner of the entire suit land (including that which
belongs to the 2 nd defendant) was a one C. M. S. Kisosonkole, father
to a one Catherine Damalie Nakawombe to whom we shall revert
later in this judgment. Mr. Kisosonkole was the original owner of
plot 771 from which plot 814 of Block 232 was curved out. PW3’s
evidence suggests that the entire suit land is held under mailo
holding.

In evidence, the plaintiff claimed to have a kibanja interest in the

suit land. This, in addition to his averment in the plaint that he
was a bonafide occupant on the suit land. The question then is
whether or not the evidence adduced before this court proves him to
be either a kibanja holder or bonafide occupant on the suit land.
Section 29(2)(a) of the Land Act defines a bonafide occupant on land
as “a person who before the coming into force of the
Constitution had occupied and utilised or developed any land
unchallenged by the registered owner or agent for twelve years
or more.”

In the present case the plaintiff’s father, a one Enoch Mwambali,

did in his life time live on and till the suit land. This was well
before the coming into force of the Constitution and certainly, from
the account of the DW2, he did live on the suit land for a period
much longer than 12 years. DW2 testified that the plaintiff’s father
was already living on the suit land by 1957 when he (DW2) started
serving the Seventh Day Adventist (SDA) Church. Mwambali lived
on this land until his death in 1974.

However, the 1 st defendant and its agents did know the capacity in
which the late Mwambali lived and tilled the land in question. All
the 1st defendant’s witnesses testified that they were aware at the
time of Mwambali’s occupancy on the suit land that he was a tenant
of a one Kalete, and was employed as a porter in the SDA Church.
DW1 categorically stated that the late Mwambali was a tenant to a
one Kalete, and testified that she recalled seeing Kalete collecting
rent from his tenants, including asking the headmaster of a school
where she taught (Kireka SDA primary school) for receipts to give
his tenants. Her testimony was not rebutted under cross
examination. DW2 reiterated DW1’s testimony, stating that late
Mwambali was a tenant of a one Samson Kalete. In addition he
stated that neither the house nor the land Mwambali lived on
belonged to him, and clarified that a one Kisosonkole owned the
land on which Kalete’s houses were built.
On the other hand, as stated earlier in this judgment, the plaintiff
testified that he has a kibanja interest in the suit premises which
he derives from Mwambali’s interest therein. He testified that he
and his father lived with the family of a local chief called Kakoma
after his mother’s death, but subsequently his father was allocated
the suit land by another local chief called Kikomeko as was
allegedly the custom. He testified that his father thereafter
occupied the land, and built a mud and wattle hut thereon initially
but he (the plaintiff) later paid Ushs. 400 and transferred Mwambali
to a house belonging to a one Ndereya Gasinzi. He further stated
that both he and his father planted crops on the land including
fruit trees some of which are allegedly still standing today.
Furthermore, that about 1953 his father told him that he was
going to pay busuulu in respect of the land and, in his view, was
therefore a recognised kibanja holder thereon. Finally he testified
that his father was buried on the suit land and that, in his view,
was evidence of ownership thereof. PW1 (the plaintiff) made no
mention of any tenancy arrangement with Mr. Kalete.

Section 101(1) of the Evidence Act places the onus to prove his
interest in the suit land on the plaintiff. This burden must be
discharged on a balance of probabilities. I note that no evidence
was adduced by the plaintiff to prove that Mwambali did pay
busuulu as opposed to rent for the property he occupied. PW1, the
plaintiff, testified that all his father’s documents were destroyed so
he was unable to furnish documentary proof of his interest in the
land. On the other hand, for the defence DW1 – a lady that
worshipped at the SDA Church during the lifetime of Mwambali,
testified that he (Mwambali) lived in one of 3 mizigos (mud and
wattle huts) owned by his landlord Kalete as the latter’s tenant.
She stated that though the Church knew that Mwambali did not
own land in the area, because he had been a faithful employee of
the Church to which Kalete also belonged, Kalete allowed Mwambali
to be buried on his (Kalete’s) land. This evidence was corroborated
by the testimony of DW2 – the pastor that conducted Mwambali’s
funeral service, who stated that the same Kalete was the one that
identified the burial site.

In the absence of sufficient proof by the plaintiff that his father had
a kibanja interest in the suit land rather than being a tenant as
alleged by the 1 st defendant, and considering the strength of the
evidence adduced on the issue by the 1 st defendant, I am
constrained to find that Enoch Mwambali was indeed a tenant on
the suit land.

Having established that Mwambali was a tenant on the suit land,

the question then is whether as a person deriving his interest from
a tenant the plaintiff qualifies to be a bona fide occupant on the
land as he claims in the plaint.

In my view, a tenant was not what was envisaged as a ‘bonafide

occupant’ under section 29(1) of the Land Act. The use of the word
‘bonafide’ is intended to restrict this provision to occupants of land
that have extensively utilised such land, lived on it for the
prescribed period of time, all with the knowledge of the registered
proprietor of such land, and have done this in the honest and
genuine belief that they do have a semblance of ownership over the
land. Certainly, in my view, section 29(1)(a) of the Land Act should
be inapplicable and unavailable to tenants that are well aware of
the capacity in which they occupy the land and subsequently
purport to turn around and claim a contrary interest therein.

The question of who constitutes a bonafide occupant on land was

extensively addressed in the case of Kampala District Land Board
and Another vs National Housing and Construction Corporation
Civil Appeal No. 2 of 2004 (UGSC). In that case the respondent
had utilised the suit land unchallenged since 1970. The Court of
Appeal held that it was indeed a bonafide occupant having utilised
the suit land unchallenged for 25 years. The Supreme Court
upheld the position of the Court of Appeal.

I am respectfully bound by the decision of the Supreme Court in

Kampala District Land Board & Anor vs National Housing &
Construction Corporation (supra). However, I must point out that
the facts of the present case differ slightly from those in the above
case. While in the above case the Respondent had continuous,
uninterrupted and unchallenged occupation of the suit land for 25
years preceding the promulgation of the Constitution, in the present
case Mwambali, from whom the plaintiff derives title, died in 1974
and ceased occupation thereof. The plaintiff had left the suit land
slightly earlier than 1974 and has not been in occupation of the
suit land since. Therefore, not only did the plaintiff and Mwambali
cease to occupy the land prior to and by 1974, they had not been in
occupation thereof for a continuous period of 12 years immediately
preceding the coming into force of the Constitution.

I am most respectfully guided by the decision of Odoki CJ, who in

the foregoing case statesas follows:

“The respondent had been in occupation or possession of the

suit land for more than 12 years at the time of the coming into
force of the 1995 Constitution.” (emphasis mine)

Accordingly, I do not find an absentee ‘occupant’ who ceased

occupation of suit premises more than 20 years prior to the coming
into force of the 1995 Constitution to be a bonafide occupant within
the precincts of section 29(1)(a) of the Land Act. I am satisfied that
the plaintiff is not a bonafide occupant on the suit land and do so
hold.
I now revert to the issue of whether indeed the plaintiff does have a
kibanja interest in the suit land as he claims. A kibanja interest in
land is not formally acknowledged as such either in the
Constitution or the Land Act, but has been treated by the courts as
customary tenure which is acknowledged by both legal sources.
See the case of Marko Matovu vs Mohammed Sseviiri & Anor
Civil Appeal No. 7/778 (CA).

The question of how to determine customary tenure is extensively

dealt with in the case of Kampala District Land Board & Another
vs. Venansio Babweyaka & Others Civil Appeal No. 2 of 2007
(UGSC). In that case Odoki CJ held as follows:

“The prohibition of customary tenure in an urban area is clear

from section 24(1)(a) of the Public Lands Act . .... The Land
Reform Decree 1975 declared all land in Uganda to be public
land to be administered by the Uganda Land Commission in
accordance with the Public Lands Act 1969, subject to such
modifications as may be necessary to bring that Act in
conformity with the Decree . ... Under the Land Reform
Regulations 1976, any person wishing to occupy public land by
customary tenure had to apply to the sub-county chief in
charge of the area where the land was situated. After
processing the application, it had to be sent to the sub-county
Land Committee for approval . The question is whether the
respondents did acquire customary ownership following the
enactment of the Land Reform Decree. The answer to this
question appears to be in the negative. Restrictions on
acquisition of customary tenure under the Public Lands Act
seem to have continued as the law (Public Lands Act) continued
to govern all types of public land subject to the provisions of
the Decree. In order to acquire fresh customary tenure one had
to apply to the prescribed authorities and receive approval of
his/ her application. There was no evidence that such
prescribed authorities existed nor that the respondents or their
predecessors acquired fresh customary tenure in accordance
with the Land Reform Decree . I would therefore hold that the
respondents could not have legally acquired customary tenure
in an urban area of Kampala City prior to the enactment of the
Land Act in 1998.” (emphasis mine)

For present purposes the import of the foregoing decision is as

follows:

1. Section 24(1) of the Public Lands Act 1969 abolished

customary tenure in urban areas, the provisions of sub-section (5)
of the same section merely permitting the prescribed Minister to
extend the prohibition to other areas that would not ordinarily
qualify as urban areas. Therefore, in the present case Mwambali
from whom the plaintiff derives title could not have lawfully or
statutorily held customary tenure in an urban area such as
Kireka.

2. The Land Reform Decree declared all land in Uganda

(including urban areas) to be public land to be administered in
accordance with the Public Lands Act. Thus the prohibition on
customary tenure in urban areas continued in force. However, the
occupation of previously designated public land could continue but
only at sufferance, with the Uganda Land Commission created by
the Decree at liberty to allocate such land to anyone. Therefore
whether Kireka was deemed an urban area or public land by the
Public Lands Act, under the Land Reform Decree the Uganda Land
Commission was authorised to allocate it to any person including
the 1st defendant in the present case.

3. The Land Reform Regulations of 1976 nonetheless prescribed

a procedure to be followed by persons, such as the plaintiff in the
present case, who wished to occupy public land by customary
tenure.

With due respect to the plaintiff, I have not seen any evidence that
illustrates that either he or Mwambali followed the prescribed
procedure. While the plaintiff testified that Mwambali applied to
local chiefs for ownership of his kibanja, he did not adduce any
evidence to show that the chiefs sent Mwambali’s application to the
prescribed Sub-county Land Committee for approval or indeed that
such approval was obtained. I am therefore constrained to find that
since Mwambali from whom the plaintiff purports to derive
customary interest in the suit land did not legally acquire
customary tenure in an urban area in Kampala City prior to the
enactment of the Land Act, it follows that the plaintiff did not legally
acquire customary interest in the suit premises either.

On the subject of customary tenure, courts have gone further to

permit a claimant that does not prove that he legally acquired
customary tenure under the then prevailing laws, to prove his/ her
claim to customary tenure by evidence alluding to the customary
practices in a given area. In the case of Kampala District Land
Board & Another vs. Venansio Babweyaka & Others (supra)the
Learned Chief Justice further held that occupation under
customary tenure must be proved by the party intending to rely on
it. He cited with approval the decision of Duffus JA in the case of
Ernest Kinyanjui Kimani vs. Muira Gikanga (1965)EA 735 at
789, who held as follows:

“As a matter of necessity, the customary law must be

accurately and definitely established. ...The onus to do so is on
the party who puts forward the customary law. ...This would in
practice usually mean that the party propounding the
customary law would have to call evidence to prove the
customary law as he would prove the relevant facts of his case.”

In the present case, though the plaintiff claimed he had a kibanja

interest in the suit land, save for his testimony that his father paid
busuulu to the local chiefs, no witness was called to prove the
customs of the area where the suit land is located with regard to
acquisition of customary interest in land. In the absence of such
proof, I am bound by the decision in the case of Kampala District
Land Board & Another vs. Venansio Babweyaka & Others
(supra), and do hold that the plaintiff does not have a customary
interest or tenure in the suit land. Therefore, I resolve the first
issue in the negative and find that the plaintiff has no interest in
the suit land.

Issue No. 2 – whether the 1 st defendant’s certificate of title was

acquired fraudulently

It was the case for the plaintiff that the 1 st defendant procured
registration of Block 232 plot 814 well-knowing that the plaintiff
was an occupant of and had an interest in the land, and did not
consult him prior to such registration. In support of this claim
PW3, a mapping expert, testified that the mapping of Block 232 plot
814 was not properly done. He stated that plot 814 was very clearly
shown in a Karamazoo book in the Lands Office but on the map was
not very clear; that the way it appears on the map suggests that it
is not original and must be a bogus plot; that it was wrong to use
ordinary ink in the mapping of this plot as original work should be
in special ink. PW3, however, did concede that this was an office
problem; he did not know whether the 1 st defendant was involved in
the works, and suggested that there was need to verify whether
plots 574 and 814 of Block 232 were genuine through the
preparation of a fresh report. Again no issue was raised about the
2nd defendant’s land.

It was the 1 st defendant’s case that it duly registered Block 232 plot
814 and is the rightful proprietor thereof. DW3 tendered a
certificate of title in respect of Block 232 plot 814 duly registered in
the names of the 1 st defendant. He testified that the land in
question was donated to the SDA Church by a one Nabagereka
Damalie Catherine Nakawombe, daughter of C.M.S. Kisosonkole the
original owner of the land, and tendered Exh. I.D. 2 – a document
dated 7th December 1986 and duly signed by the said Damalie
Nakawombe in support of his allegations. DW3’s testimony was
corroborated by the evidence of DW1 who testified that she was a
member of the SDA Church when Ms. Nakawombe donated the land
to it.

Section 59 of the Registration of Titles Act (RTA) provides that a

certificate of title shall be conclusive evidence of title and shall not
be impeached on grounds of informality or irregularity in the
application for the issuance thereof or processes leading to such
issuance. However, sections 64 and 176 of the RTA do permit the
cancellation of a certificate of title obtained by fraud. Fraud has
been defined to include dishonest dealing in land, sharp practice
intended to deprive a person of an interest in land, or procuring the
registration of a title in order to defeat an unregistered interest. See
Kampala Bottlers Ltd vs Damanico Ltd Civil Appeal No. 22 of
1992 (SC), Kampala District Land Board & Anor vs National
Housing & Construction Corporation (supra)andKampala Land
Board & Another vs. Venansio Babweyaka & Others (supra).

In the present case, I have already found that the plaintiff is not
possessed of any interest in the suit land. I therefore do not find
the 1st defendant’s registration of its interest tantamount to fraud.
 Counsel for the plaintiff contended that Ms. Nakawombe’s
signature on Exh. I.D.2 was different from her signature on the
transfer form (Exh. I.D. 3) and connoted fraudulent transactions by
the 1st defendant. I must respectfully disagree with Counsel. I have
had occasion to scrutinise both documents and find the signature
in question largely the same. I therefore resolve issue no. 2 in the
negative and find that the registration of the 1 st defendant’s interest
in Block 232 plot 814 was not procured fraudulently.

In the premises, I do hereby dismiss the suit against the 1 st

defendant. I note that though the case against the 2 nd defendant
proceeded in his absence under O.9 r.10 of the CPR, the plaintiff
has not proved his case against him to the required standard. I
accordingly dismiss the suit against him.

I order that each party to this suit bears its own costs.

MONICA K. MUGENYI

Kampala Bottlers Ltd v Damanico (U) Ltd ((Civil Appeal No. 22

of 1992 ) ) [1993] UGSC 1 (11 January 1993);

JUDGEMENT OF WAMBUZI, C,J :

The Appellant, a limited liability company, brought an action in the
High Court against the respondent, also a limited liability company,
seeking an order of eviction and general damages in trespass.
Briefly the facts were that the appellant is the registered proprietor
of approximately 1.030 hectares of land comprised in Lease hold
Register Volume 1972, folio 2, Plot No. M 271, Nakawa Industrial
Area, Kampala. The appellant alleged that in November, 1991, the
respondent trespassed on the appellant’s land by clearing and
grading the same.
The respondent admitted entry upon the land in question but
denied such entry was wrongful as it was by virtue of a grant of a
lease in the suit property for a period of five years. The respondent
alleged that the certificate of title held by the appellant of the suit
property was obtained by fraud.
At the trial, the sole issue was whether or not the appellant
obtained its title of the suit property by fraud.
The learned trial Judge found there was fraud and gave judgement
in favour of the respondent. The appellant -has now appealed to
this Court against the decision of the High Court on two grounds,
namely,

“1. That the learned trial Judge erred in law in holding that the
certificate of title was obtained by fraud.
2. The learned trial Judge erred in law in not awarding the reliefs
prayed for.”
In arguing the first ground, Dr. Byamugisha for the appellant
submitted that by a letter dated 13th October, 1988, exhibit P.2,
the appellant who had initially obtained a lease in respect of the
suit property was granted an extension of two years with effect from
1st May, 1988. The Commissioner of Lands was accordingly notified
by letter, exhibit P.3. Apparently, it was necessary to re-survey the
plot, which was done. The City Council of Kampala demanded
ground rent by letter dated 28th August, 1991 which was paid as
per exhibit P.7. Exhibit P.1 which is the certificate of title was
accordingly prepared and was executed on 26th September, 1991.
Learned Counsel submitted that by the time the respondent was
granted a lease of the same plot, the appellant had already been
registered as proprietor. Learned Counsel submitted that the City
Council dealt with the appellant as if it was not necessary to apply
for extension of the lease as the lease offer had not been utilized
because of the re—survey which had not been completed until
1991. Learned Counsel referred us to sections 184, 42 (4) and 56 of
the Registration of Titles Act to the effect that the title of a
registered proprietor cannot be impeached because of irregularities,
that fraud must be proved. No particulars of fraud were pleaded
and there is no evidence to support the learned trial Judge’s finding
of fraud.
For the respondent, Mr. Kateera submitted in effect that a
certificate of title is evidence of a grant without which the certificate
is meaningless. Learned Counsel argued in effect that the grant
made to the appellant expired in 1990 and was not renewed.
Accordingly the lease subsequently prepared by the Land Office was
without authority.
It is not in dispute that the appellant was initially granted a lease
over the suit property. The dispute is whether or not this lease was
extended as claimed by the appellant. It is also not disputed that
the appellant is the registered proprietor but it is claimed for the
respondent that the registration was obtained by fraud.
In so far as is relevant, section 56 the Registration of Titles Act
provides as follows:—
“……………and every certificate of title issued under the provision
herein contained shall be received in all courts as evidence of the
particulars therein set forth and of the entry thereof in the Register
Book, and shall be conclusive evidence that the person named in
such certificate as the proprietor of or having any estate or interest
in the land therein described in is seized or possessed of such
estate or interest ……..”
According to these provisions, it would appear to me that
production of the certificate to title in the names of the appellant is
sufficient proof of ownership of the land in question unless the case
falls within the provisions of section 184 of the Registration of Titles
Act. The section provides as follows
“No action of ejectment or other action for the recovery of any land
shall lie or be sustained against the person registered as proprietor
under the provisions fo this Act, except in any of the following cases
—
(a) the case of a mortgagee as against a mortgagor in default;
(b) the case of lessor against a lessee in default;
(c) the case of a person deprived of any land by fraud as against the
person registered as proprietor of such land through fraud or as
against a person deriving otherwise than as a transferee bona fide
for value from or through a person so registered through fraud
(d) the case of a person deprived of or claiming any land included in
any certificate of title of other land by misdescription of such other
land or of its boundaries as against the registered proprietor of
such other land not being a transferee thereof bona fide for value;
(e) the case of a registered proprietor claiming under a certificate of
title prior in date of registration under the provisions of this Act in
any case in which two or more certificates of title may be registered
under the provisions of this Act in respect of the same land,
and in any case other than as aforesaid the production of the
registered certificate of title or lease shall be held in every court to
be an absolute bar and estoppel to any such action against the
person named in such document as the grantee, owner, proprietor
or lessee of the land therein described, any rule of law or equity to
the contrary notwithstanding.”
In the first place and needless to say, lack of grant is not one of the
grounds for impeaching the title of a registered proprietor on the
wording of this section and also of section 56 to which I referred
earlier in this judgement. I must, therefore, reject Mr. Kateera’s
argument that a certificate of title is meaningless unless a grant has
been shown to have been made in respect of the land in question.
Secondly, on the wording of section 184 it would appear that an
action for recovery of land can lie or be sustained only by “a person
deprived of any land” against the person registered as proprietor of
such land through fraud.”
In the case before us it must be show that the appellant was
registered as proprietor of the land through fraud. In its written
statement of defence, the respondent pleaded in paragraph 6 as
follows,
“It is submitted that the certificate of title annexed to the plaint was
obtained by fraud as since 1990 the City Council of Kampala never
sat to give further extension of the lease to the plaintiff.”
Normally, where fraud is pleaded, particulars of the fraud must be
given. It was submitted before us that the particulars of the fraud in
this case were the fact that the City Council did not sit since 1990
to give further extension of the lease to the
plaintiff.
I must confess I am a little at a loss as to who was being alleged to
have been fraudulent.
Be that as it may, on the question of fraud which in a way was the
sole issue in the lower Court, the learned trial Judge had this to
say,
“The spring board of the 1 st issue is to get the meaning of ‘fraud’. It
is well established law that fraud means actual fraud or some act of
dishonesty. In Waimiha Saw Milling Co. Ltd.vs. Waione Timber Co.
Ltd. (1926) AC 101 at p. 106. Lord Bushmaster said ‘Now fraud
implies some act of dishonesty’ . Lord Lindley in Assets Co. vs. Mere
Roihi (1905) Ac 176 states, ‘Fraud in these actions (i.e. actions,
seeking to effect (sic) a registered title) means actual fraud,
dishonesty of some sort not what is called constructive fraud an
unfortunate expression and one may opt to mislead, but often used
for want of a better term to denote transactions having
consequences in equity similar to those which flow from fraud”

This case was applied by our Court of Appeal in David Sejjaaka vs .

Rebecca Musoke, CA No. 12 of 1985.
Reviewing the whole evidence and both counsels’ submissions
about the issue of fraud and given the available legal issues, I think
Mr. Kateera’s submissions are unassailable. There was fraud and it
was committed by someone in the land Office. That someone had by
design incorporated the minute quoted in the lease and persisted in
sending the lease document for execution by the Council. The
Council Chairman and Town Clerk must have perused the lease
document containing the said minute. They are supposed to peruse
it in any case before signature. However, they went ahead and
executed the documentation 8.10.91. The minute is the root from
which the offer and certificate of title derive their validity. This has
been held to be the legal position in Livingstone Sewanyana vs.
Martin Aliker, CA No. 4 of 1990 (SC). In this case the plaintiff under
KCC minute DC 20/233/88 dated 7.9.88 was given a two year lease
effective from 1.5.88. For reasons stated the Plaintiff did not apply
for extension and there was actually no extension granted by the
Council. The Defendant under Mm DC 9.8.91 of 9.9.91 was granted
a lease for an initial period of 3 years from 1.10.91, (Exh. D.1.).
Then out of the blue on 8.10.91, the plaintiff was granted a lease fro
two years from 1/8/91 quoting KCC Mm DC/233/88 dated 7/9/88
(Exh. 15). This lease was processed by the Land Office.
I agree with Mr. Kateera that the Land Office has no general agency
to prepare certificates of title. They only prepare a certificate where
they have been instructed by the City Council which is the
controlling Authority.
I refer to section 17 of the Public Lands Act.
In this particular case evidence in this respect was adduced by DW1
when he stated that a lessee whose lease has expired before the
survey (in this case a re—survey) has been completed, it would still
be necessary to re—apply after that re—survey and the application
be subjected to further consideration by the Council. In this case
there were no instructions contained in any minute found on the
preparation of the certificate which was issued on 8/10/91. The
Land Office by design quoted an earlier minute on which an expired
grant had been based. I say by design because I cannot think of any
other explanation why a basic matter like a minute should not have
put them on notice. I also fail to understand why the Council
Chairman and the Town Clerk signed the lease without perusing it
as they ought to. Had they perused it they would have found out
that the lease was not a wrong minute (sic) and that barely a week
earlier the City Council had granted a lease offer to the Defendant
of the same plot ………….

The way the 1 st issue has been framed does not compel me to
determine who committed the fraud. The facts disclosed an
irregularity surrounding the grant so grave as to amount to a
dishonest dealing with the grant. Both the Land Office and Council
Chairman and Town Clerk share responsibility for this by their
refraining from carrying out basic inquiry.

In my considered view, there is no sound reason disclosed why the

Land Office and that of the Council Chairman and Town Clerk could
not peruse the minute under which the Plaintiff’s certificate was
processed. That was the basic pre-requisite. They refrained from
doing that and the result was fraud. I therefore find that fraud was
committed.
Dr. Byamugisha submitted that even if there had been any fraud on
the part of the Council, that fraud could not be used to impeach the
Plaintiff’s title.
In support of his argument, he referred to ss 56 and 184 of the
Registration of Titles Act.
I wish to answer Dr. Byamugisha’s argument by the following quote
from the case of Robert Lusweswe vs Kasule&Anor HCCS No. 1010
of 1983, where Odoki J. as he then was said,
‘Therefore while the cardinal rule of registration of titles under the
Act is that the Register is everything, the court can go behind the
fact of registration in cases of actual fraud on the part of the
transferee.”
Taking the last point first and with respect to the learned trial
Judge, I do not think that Dr. Byamugisha’s point was answered by
the authority cited. If anything, the authority supports Dr.
Byamugisha’s point and as already indicated in this judgement,
fraud must be attributable to the transferee. I must add here that it
must be attributable either directly or by necessary implication. By
this I mean the transferee must be guilty of some fraudulent act or
must have known of such act by somebody else and taken
advantage of such act.
Returning to the judgement of the learned trial Judge, he seems to
have held that there was fraud because he could not otherwise
understand how all those concerned would fail to notice the
duration of the lease which was indicated in the Minute of the City
Council Meeting. He went on to find fraud committed by someone in
the Land Office by the Chairman of the Council and by the Town
Clerk. The latter two apparently for failure to notice the error.
With respect, this verges on constructive fraud if there was any
fraud rather than actual fraud as required by the authorities
referred to in the lower court. Besides, it was not shown nor did the
learned trial Judge find that the appellant was guilty of any fraud or
that he knew of it.
Further, I think it is generally accepted that fraud must be proved
strictly, the burden being heavier than on a balance of probabilities
generally applied in civil matters. The learned trial Judge did not
indicate the standard at which fraud had been proved. There may
have been negligence on the evidence before the learned trial Judge
but equally all those concerned may have thought that the
appellant was entitled to a term after the re-survey as the offer had
not been utilised. With respect I am unable to say that fraud was
proved against the appellant or anybody for that matter.
I would allow the appeal, set aside the judgement and the
judgement and Decree of the High Court and substitute therefore
judgement for the appellant with costs her and in the Court below.
There appears to be evidence that trespass had at some stage
ceased and therefore there is no necessity for an eviction order. I
would otherwise remit the case to the High Court for assessment
and grant of general damages for trespass. As both Oder and Platt
JSC agree with my proposed orders it is so ordered.
Given under my hand and the seal of this Court this 12th day of
January 1993.

JUDGEMENT OF PLATT, J.S.C :

The Kampala Bottlers Ltd, a limited liability company, brought an
action against Damanico (U) Ltd. praying for the eviction of
Damanico (U) Ltd. general damages in trespass and costs.
There is no dispute that the Plaintiff had originally been granted a
lease of a parcel of land registered in leasehold register Vol. 1972,
Folio 2, Plot No. M.271, Nakawa Industrial Area. The lease was
extended from 1988 for two years with effect from 1st May 1988
(see exhibit P. II). That was followed by a notification to the
Commissioner of Lands, from the City of Kampala, asking the
Commissioner to effect the extension. This notification was given on
28th February, 1989 (see exhibit P.111). However when the
extension was to be effected, a complaint was received from the
Foods & Technology Department of the Ministry of Rehabilitation,
that the Plaintiff had encroached upon the Ministry’s land.
Consequently, the extension was not carried out, because of the
necessary re-survey which took some time. The lease expired before
the survey was completed in early 1991. There was some delay in
obtaining prints of the new survey. But it seems that on the basis of
the old lease, there followed a demand for land premium and
ground rent dated 28th August 1991 for shs 705,000/= (see exhibit
PVI). The money was paid on 4 th September, 1991. On 26 th
September, the Plaintiff was given a lease for two years from the 1st
day of August 1991 which was registered on 8 th October, 1991.
In the meantime, on 15 th July, 1991, the Defendant Damanico Ltd.
applied for a plot on which to erect a bottling plant. On 31 st October
1991 the Defendant was allocated Plot M. 271 Nakawa Industrial
Area with a lease for three years extendable to 49 years. The
Defendant was told to contact the Commissioner of Lands for the
preparation of a formal lease offer. Accordingly, the Commissioner
for Lands made out a lease offer on 7 th November, 1991 (exhibit
0.1). It seems that the Plaintiff objected, and the Town Clerk
answered on 27 th November 1991 (exhibit D.4). The Town Clerk
explained to Dr. Byamugisha, the Plaintiff’s Advocate, that the
Plaintiff’s lease had expired on 13 th April 1990, and accordingly the
plot reverted back to the City Council. Indeed the Council had
allocated it to another developer on 9th September, 1991. The Town
Clerk explained that the Plaintiff no longer stood as the registered
proprietor of the land, and by a copy of the letter the Defendant was
requested to proceed with development on the site.
Strangely enough, the land premium and ground rent was still
demanded from the Plaintiff Company on 21 st January 1992, and
again on 17th February 1992.

At the end of 1991 or the beginning of 1992 the Defendant

Company went on to the land and started to clear and grade it in
preparation for building a factory. In its defence the Defendant
admitted that it had done so and claimed that its entry upon the
land was lawful. First the Defendant pointed out that the Plaintiff’s
lease had expired in 1990, and the City Council had granted a
leasehold to the Defendant on 9th September, 1991. The Council
had followed it up with the letter of allocation of the 31st October
1991 and then the lease offer of 7 th November 1991.
How the letter of 31 st October 1991, and lease offer of 7 th November
1991 came to be made, is difficult to understand, because the lease
to the Plaintiff had been made out on the 26 th September, 1991 and
registered on the 8 th October, 1991, several weeks before the
allocation of the land was notified to the Defendant on 31st
November, 1991. What is more remarkable is that Mr. Patrick
Makumbi, the Town Clerk has signed all these documents; the lease
to the Plaintiff and the allocation to the Defendant. Nevertheless,
the Plaintiff relying on its registered title vis the lease registered on
8th October 1991, brought this action against the Defendant, which
replied that the Plaintiff had obtained its Certificate of Title by
fraud, for the reasons that the Kampala City Council had never
given authority for a further extension of the lease to the Plaintiff.
In fact, the Defendant is quite correct. The Plaintiff’s lease had
expired on 1990 and it was not renewed by any further offer of an
extension. But the Plaintiff was awaiting the result of the re-
survey.
The learned Judge found no fraud on the part of the Appellant, but
the officials in the City Council and Land Office were guilty of fraud.
Consequently he set aside the registration of the Plaintiff’s lease
dated 8th October 1991. The Plaintiff appeals against the decision. I
shall now refer to him as the Appellant.
It is, at first sight, somewhat difficult to see why the officials should
have been fraudulent while the person to benefit was not so guilty. I
suppose it might just be that the officials could have some grudges
against one of the parties. On the other hand, it is easy to see a
case where the registered owner to whom the land was transferred
could be guilty of fraud together with the officials, or where he
could see a wrongful action by the officials about to take place and
take advantage of it.
The nearest illustration of fraud in this case might be the last one
Viz where the officials had acted wrongly and the registered owner
had taken advantage of it. But the learned Judge has negatived that
result by not finding that the Appellant -the registered owner was
guilty of any fraud.
From the sequence of events set out above, I have great sympathy
with the learned Judge’s exasperation at the manner in which these
important industrial developments were handled almost
simultaneously, in granting the Appellant a lease which was
registered on 8 th October 1991, the same month as that in which
the Council offered a lease in the same land to the Respondents.
Such a record can only lead to sinister suspicion. But there was no
evidence that the Appellant knew anything of the Respondent’s
activities until the Respondent appeared on the Appellant’s land.
The Appellant could well have thought that the Council was putting
the record straight after the re-survey. The extension to 1990 had
not been completed. Certainly, the Council can hardly claim that
there should have been a fresh application, until the re-survey was
complete and after the Council demanded in August 1991 land rent
and received in September 1991, in the sum of shs. 705,000/=; no
small sum. I would agree with the learned Judge that there was no
evidence of fraud upon the Appellant’s part, and the failure to apply
for a further extension, if it was a failure, is quite understandable.
In these circumstances the issues for trial required a careful
approach.
In the first place, I strongly deprecate the manner in which the
Respondent alleged fraud in his written statement of defence. Fraud
is very serious allegation to make; and it is; as always, wise to abide
by the Civil Procedure Rules Order VI Rule 2 and plead fraud
properly giving particulars of the fraud alleged. Had that been done,
and the Appellant had been implicated, then on the Judge’s
findings that would have been the end of the defence. If, on the
other hand, the officials had been implicated, then on the usual
interpretation of Section 184 (c) of the Registration of titles Act, that
would have been found to be insufficient. It is generally held that
fraud must reside in the transferee. Whether the learned Judge’s
wider interpretation of the words of Section 184 (c) —
“……….as against the person registered as proprietor of such land
through fraud”
can mean that the fraud of third parties quite apart from the
transferee, is sufficient to set aside registered title, is a matter
which may possibly need further elucidation. But it is not open for
consideration in this case, because of another important procedural
lapse. Had that been the Respondent’s Case, he should have
brought the Land Office officials and Town Council Officials before
the Court. It is important that before someone’s reputation is
besmirched, he has had an opportunity to defend himself. The
officials here might have explained the confusion in their action.
Even incompetence might not be fraudulent.
It must be understood from the nature of the defence, that the
unspecified fraud must be primarily directed against the party in
the case, against whom the defence has been made. That is to say,
that primarily, the Respondent’s allegation of fraud must relate to
the way in which the Appellant gained registration, as the Appellant
was the only other party in the case.
The resultant situation then is that as no fraud was found on the
part of the Appellant, that was the end of the matter. The learned
Judge held that the vagueness of the pleadings allowed him to find
fraud wherever he might see it. That, with respect, was allowing
himself too great a latitude. His proper course was to have called
the Respondent’s attention to the vague allegation of fraud before
the trial, and ascertain whether an amendment was necessary, to
specify what fraud it was that the Respondent alleged. That would
have clarified the issues for trial. This case seems to call for greater
pre-trial clarification as on summons for directions.
Then once the Appellant had a registered title, and that prior in
time to the lease offered t the Respondent the Respondent had no
right to trespass on the land of the Appellant.

The Respondent vacated the land promptly. Hence no eviction order

is now necessary. But general damages were claimed and that issue
was not resolved. I agree with My Lord,The Chief Justice that the
record should be remitted to the trial Court for the assessment of
damages. It is usual for the trial Court to assess damages in case
its main finding is upset. I would agree with all the consequent
orders proposed by him on allowing this appeal.
Before I leave the matter, I should perhaps add one or two words on
the place in proceedings such as this, of the preliminary steps
leading to registration of title of land.
Registered title cannot be set aside for mere irregularity in the
preliminary stages. (See Sec. 56 of the Registration of Titles Act). It
is fraud that has to be proved where Section 184 (c) of the
Registration of Titles Act is involved. It may be that the various
steps taken illustrate fraud. Such a case was SEWANYANA VS
MARTIN ALIKER NO. 4 of 1990 (S.C.). The authority had no right to
grant the land. The allocatees had put in false papers, which have
been wrongly passed by the Council’s officer. Altogether there was
collusion and fraud in the transferee.
Delivered at Mengo this 12 th day of January 1993.

Michael Mulyanti & Anor v Jackeline Batalingaya & 3 Ors (Civil

Suit No.434 of 2008) ((Civil Suit No.434 of 2008)) [2009] UGHC
99 (26 August 2009);

1. MICHAEL MULYANTI
2. SAM MULYANTI (suing as
Administrators to the Estate
Of Late Muses Mulyanti) ……………………….
PLANTIFFS
-VS-
1. JACKELINE BATALINGAYA
2. JANETTE BATARINGAYA
3. JULIET BATARINGAYA
4. GEOFFREY BATARINGAYA …………………………
DEFENDANTS

BEFORE HON. JUSTICE RUBBY AWERI OPIO

JUDGMENT

Background:
The Plaintiffs instituted this suit in their capacity as administrators
of the estate of the late Moses Mulyanti and for the beneficiaries of
the estate for a declaration that they are lawful or bonafide
occupants on the suit land comprised in Kibuga Block 27 Plots 8,
17 and 126. The Plaintiffs contended that the late Moses Mulyanti
and some of the beneficiaries entered on the suit land with the
consent of the Defendants’ predecessor in title and occupied,
utilized and developed the suit land unchallenged by the registered
proprietors or their agents from the early 1970s to date. The
Plaintiffs claimed that the estate of the late Moses Mulyanti
included a kibanja on the suit land. They further claimed that they
were in possession and had developments and structures on the
suit land, some of which were extensively damaged by the
Defendants or their agents whereof they claim damages.

The Defendants’ case was that they were the registered proprietors
of the land being beneficiaries to the estate of the late Basil
Bataringaya who bought and acquired the land in 1968 with all
structures thereon including the current houses resided in by
Nakato Medina and Susan. Besweri Mulyanti who owned the land
and constructed structures thereon prior to 1970 had sold the same
and transferred title to the said Basil Bataringaya. Subsequently,
Moses Mulyanti challenged the said transaction and transfer but
later abandoned the lawful acquisition by Basil Bataringaya. The
matter of legal proceedings relating to the legal dispute of
ownership and claim was in proceedings under Miscellaneous
Cause 7 of 1970, Basil Bataringaya v Moses Mulyanti where a
consent order was entered and extracted. The Defendants
contended that Moses Mulyanti and his sister continued occupancy
of the land on the permission and consent of Basil Bataringaya and
the beneficiaries herein Defendants as tenants at will and licensee.

Subsequently when the Defendants became of age they requested

Moses Mulyanti to vacate the land and houses so that, as
beneficiaries of their father’s estate, they could start using their
land. However, the Mulyanti family requested for more time to
relocate. Unfortunately upon the death of Moses Mulyanti, the
administrators and alleged beneficiaries started claiming bonafide
or lawful or kibanja ownership on the land and structures thereon.
The Defendants concluded that the Plaintiffs or occupants on the
land have no claim to justify before court on grounds of locus
standi, resjudicata, limitation and non- compliance with the
provisions of the Land Act.

Agreed Facts:
During the scheduling conference the following facts were agreed
upon:-
(1) That Besweri Mulyanti sold the suit land in 1968 to Basil
Bataringaya.

(2)That the Defendants are the registered proprietors of the suit

land comprised in Kibuga Block 27 Plots 9, 17 and 126.

(3)The Plaintiffs are the administrators of the estate of the late

Moses Mulyanti, who resided on the suit land from early 1970s to
2001, when he died.

(4)The late Moses Mulyanti had no wife or children.

Agreed Issues:
The following issues were agreed:
(1) Whether the Plaintiffs have the locus standi to bring this suit.

(2)Whether the identified occupants namely Nakato Nakiganda and

Medina Nsubuga are beneficiaries of the estate of the late Moses
Mulyanti.

(3)Whether the claim of ownership of the suit land is affected by the

decision in Miscellaneous Application 7 of 1970.

(4) Whether the Plaintiffs’ claim is of Kibanja, lawful or bona fide

occupancy.

(5) Whether the Plaintiffs are entitled to the remedies and reliefs
prayed for in the plaint.

(6) Whether the Plaintiffs have a lawful claim to the structures on

the suit land and are entitled to reliefs arising from damages to the
structures.
(7) Whether the Defendants are entitled to the reliefs sought in their
defence.

Resolution of issues:
Issue No.I: Whether the Plaintiffs have locus standi to bring
this suit.

On this issue the Plaintiff relied mainly on the evidence of Micheal

Mulyanti Pw(1) and Sam Mulyanti Pw(2).

Michael Mulyanti Pw1 testified inter alia that he was the

administrator of the estate of his late brother, Moses Mulyanti
through Letters of Administration granted to him and his nephew
Sam Mulyanti in the year 2004. A copy of the Letters of
Administration was marked exhibit P1. Sam Mulyanti Pw2
confirmed that he was co-administrator of the estate of the late
Moses Mulyanti together with Michael Mulyanti. Both witnesses
testified that they were before this court in their capacity as
administrators of the estate of the late Moses Mulyanti and for the
beneficiaries of that estate. They named the beneficiaries as: Rose
Mary Mulyanti, Ronald Mulyanti, Nakakto Yudaya, Madina
Nansubuga, Sam Mulyanti and Michael Mulyanti.

The suit was inter alia for a declaration that they were entitled to a
declaration that they were lawful or bonafide occupants of the suit
land where the late Moses Mulyanti had been occupying since 1970
until his demise in 2001. They contended that the above interest in
the suit land was created by the 1995 Constitution and the Land
Act in favour of the Late Moses Mulyanti before he died in 2001 and
that the law having conferred upon him the right of lawful or
bonafide occupancy, his death could not take away that interest
since under Section 34 (2) of the Land Act, tenancy by occupancy is
inheritable. I do agree that the Plaintiffs in their capacity as
administrators of the estate of the late Moses Mulyanti in whatever
forms, are duty bond to protect the same, including instituting suits
where necessary. Indeed under Section 180 of the Succession Act
an administrator of a deceased person is his or her legal
representative for all purposes and all property of the deceased
person vests in him or her as such. Further more under Section
192 and 193 of the Succession Act Letters of Administration vests
in the administrators all rights and interests belonging to the
intestate as effectually as if administration had been granted at the
moment after his or her death: See Khalid Walusimbi v Jamil
Kaaya & Another [1993] IKALR 20.

In the instant case, the Plaintiffs as administrators and

beneficiaries to the estate of the late Moses Mulyanti are clothed
with power to oversee the estate of the late Moses Mulyanti,
including bonafide or lawful occupancy, if at all they subsisted.
Prima facie therefore, the Plaintiffs capacity and the nature of their
claim clearly establishes a cause of action, hence locus standi to
institute and prosecute this suit. I must say that establishing locus
standi is different from proving it because the latter deals with proof
by evidence whereas the former involves looking at the Plaintiff’s
pleadings.

Issue No.2: Whether the identified occupants namely Nakato

Nakiganda and Medina Nansubuga are beneficiaries of the estate
of the late Moses Mulyanti.

Generally, a personal representation of a deceased person is under

a duty to distribute to the persons property entitled under the
deceased will or intestacy. According to the testimony of Michael
Mulyanti Pw1, the late Moses Mulyanti was survived by the
following beneficiaries:
(1) Rose Mary Mulyanti (sister).
(2) Ronald Mulyanti (nephew and customary heir).
(3) Michael Mulyanti (brother).
(4) Sam Mulyanti (brother).
(5) Nakato Yudaya (common law wife (mistress).
(6) Medina (dependant).

The above evidence was corroborated by Sam Mulyanti Pw(2). He

testified that Nakato and Medina were residing in the suit property
as beneficiaries of the estate of Moses Mulyanti. He clarified that
Nakato was the wife of Moses Mulyanti while Medina was Nakato’s
daughter who was not biological daughter of Moses but was
depending entirely on him. That after taking on the estate of Moses
Mulyanti, they continued supporting Medina by paying her tuition
and she is now a graduate with Diploma.

Nakato Yudaya Pw(3) affirmed that she had been a girlfriend of the
late Moses for 30 years and that she used to depend on him. After
the death of Moses Mulyanti, Michael Mulyanti and Sam Mulyanti,
took over looking after her and her daughter Medina Pw(4). Medina
in her testimony stated that after the death of Moses Mulyanti,
Michael Mulyanti and Sam Mulyanti took over the responsibility of
looking after her and her mother Nakato. She confirmed that she
belonged to the family of Kiwanuka and not of Mulyanti although
she was born at the home of Moses Mulyanti and was the one who
looked after her.

According to Osborn’s Concise Law Dictionary, 8 th Edition, a

beneficiary is defined as one for whose benefit property is held by a
trustee or executor. Under Section 28 of the Succession Act when a
male person dies intestate as in the instant case, those who are
entitled to his property are the following:-

(1)
Customary heir
(2) Wife (or wives)
(3) Dependant relatives
(4) Lineal Descendants

According to Section 3 of the Succession Act it is apparent that

Medina and Nakato Yudaya do not qualify as dependants because
Medina is not in any way a daughter to the late Moses Mulyanti and
Nakato was not a wife of the deceased. Much as Madina was
allegedly born and raised at the home of the late Moses Mulyanti,
she had her own biological father in the person of a one Kiwanuka.
She is therefore not of the Mulyanti lineage but lineal descendant of
Kiwanuka. There is no evidence to prove that the said Madina had
been adopted by the late Moses in a manner recognized as lawful by
the law of Uganda. Accordingly there is no way she can assume to
be a beneficiary merely because she was raised by her mother who
was cohabiting with the deceased.

As to the position of Yudaya Nakato, she does not qualify as a wife

because a wife under the Succession Act means a person who, at
the time of the intestates death was,
(a)
validly married to the deceased according to the laws of Uganda; or
(b) married to the deceased in another country by a marriage
recognized as valid by any foreign law under which the marriage
was celebrated.

The evidence abounds that at the time of the demise of Moses

Mulyanti, Nakato Yudaya was merely his mistress although she had
cohabited with him for a considerable period of time. Marriage is a
creation of law and not a question of sentiment. In fact to prove that
the deceased never left a widow or children, it was indicated in his
death report that he died a bachelor. In the same report none of the
two were mentioned as among the surviving relatives. However, the
Plaintiffs were shown as the surviving near relatives of the deceased
and persons intending to apply for Letters of Administration of the
deceased’s estate.

Lastly, even in the petition for letters of administration it was not

declared that the deceased had left behind a widow. However it was
declared that the deceased had left no children. In view of the above
circumstances I do find that Nakato and Madina are not
beneficiaries to the estate of the late Moses Mulyanti. However, the
Plaintiffs who are next of kin to the deceased would be entitled to
inherit the deceased’s estate that may be legally identified.

Issue No.3: Whether the claim of ownership of the suit land is

affected by the decision in Miscellaneous Application No.7 of
1970.

According to the evidence of Michael Mulyanti Pw1 and Sam

Mulyanti Pw2, they wee not claiming ownership of Mailo interest in
the suit land. They were merely claiming lawful or bonafide
occupancy on the suit land, an interest created by the 1995
Constitution and the Land Act Cap 227 which came into force on
2nd July 1998. The issue before court in 1970 did not cover the
claim of lawful or bonafide occupancy currently being made on the
suit land by the Plaintiffs. As far as the doctrine of res judicata is
concerned, it is not enough to rely on res judicata merely on
account that one of the essential elements exists. The subject
matter of the claim in the subsequent suit must have been covered
by the previous suit: See NAROTTAM BHATIA & Another vs
BOUTIQUE ZHAZIM Ltd. High Court Miscellaneous Application
No.505 of 2004 (unreported).

Now therefore since there is no evidence on record that the claim

now being made has ever been adjudicated upon by any known
competent court between the present parties or their predecessors
in title, the issue of res judicate would not arise. In the premises,
the decision in Miscellaneous Application No.7 of 1970 does not
have any bearing on the current suit.

Issue No.4: Whether the Plaintiffs’ claim is of lawful or bonafide

occupancy.

It was the contention of the Plaintiffs that in their capacity as

administrators of the estate of Moses Mulyanti, they qualify as
lawful occupants under the law deriving their interests from the late
Moses Mulyanti who had occupied the suit land since 1970 with the
consent of the late Basil Bataringaya. The Plaintiffs contended that
even after the order of court of 1970, the late Moses Mulyanti was
never evicted from the suit properly by way of execution of that
order. Therefore, his continued occupation of the suit property was
with knowledge and consent of the late Bataringaya or his agents.
Accordingly, the Plaintiffs concluded that since the late Moses
Mulyanti was a person who entered the land with the consent of the
registered proprietor within the meaning of Section 29 (1) (b) of the
Land Act the qualified as a lawful occupant, an interest that passed
on to the Plaintiffs as his legal representatives by operation of law.

With regard to bonafide occupancy, it was the contention of the

Plaintiffs that once evidence was led to the effect that a person had
occupied, utilized and developed the suit land unchallenged by the
registered proprietor or his agent for twelve or more years before the
coming into force of the Constitution, the claim for bonafide
occupancy is made out. It was the Plaintiffs’ evidence that the late
Moses Mulyanti had lived and developed the suit land since 1970
up to 2001 when he passed on without being challenged or evicted
by the Defendants.

According to the Defendants, the suit land was bought by their late
father Basil Bataringaya in 1968 from the father of Moses Mulyanti.
The transaction was effected through G. S. Lule’s law firm.
Subsequently the late Moses contested the sale and ownership and
put a caveat on the property but the matter was resolved by court
in 1970. After conceding defeat, the late Moses requested to be
allowed to buy off the suit land from the late Bataringaya but that
request was turned down. When the late Basil Bataringaya was
murdered by Amin in 1972 there followed turbulent times in the
family history forcing the family to relocate to Mbarara. After the
murder of their mother in 1977 the Administrator General took over
the administration of their father’s estate until 1986 when their
elder brother Kenneth Bataringaya acquired Letters of
Administration to the estate. It was at that point that they told the
late Moses Mulyanti who was caretaking the land to vacate so that
they could develop the same. In response the late Moses requested
for time to vacate. Because Mulyanti was such a caretaker they
allowed him more time. Later on Moses Mulyanti fell sick and died
before vacating the suit land. Subsequently they got
correspondences suggesting that the late Mulyanti had bonafide
occupancy which surprised them so much because Moses Mulyanti
was not a squatter but just a mere caretaker. In conclusion, it was
the Defendants’ evidence that prior to his death Moses Mulyanti did
not claim kibanja bonafide occupancy or lawful occupancy but that
the above claims were raised later by the Plaintiffs.
Claim for lawful occupancy:

Section 29 (1) of the Land Act provides the meaning of lawful

occupant to mean
(a) a person occupying land by virtue of the repealed
(i) Busuulu and Envujjo law of 1928
(ii) Toro Landlord and Tenant Law of 1973
(iii) Ankole Landlord and Tenant Law of 1937

(b) A person who entered the land with the consent of the registered
owner and includes a purchaser; or

(c) A person who had occupied land as customary tenant but whose
tenancy was not disclosed or compensated for by the registered
owner at the time of acquiring the Leasehold Certificate of title.

The Plaintiffs’ claim is based on the fact that the late Moses
Mulyanti had occupied the suit land from 1970 until 2001 with the
consent of the registered proprietor. Consent it is a question of
interpretation of the status quo. From the evidence on record, the
suit property was bought from the father of Moses Mulyanti in
1968. The property had a main house which the late Besweri
Mulyanti had erected. The moment the suit land was sold to the late
Bataringaya the Mulyanti family lost all their legal interest and
those who remained in the premises became mere licencees. Under
Section 30 (4) of the Land Act a person who is on the land on the
basis of a licence from the land owner shall not be taken to be a
lawful occupant. After failing to regain possession of the suit
property from Basil Bataringaya, the Mulyantis could not have
expected to remain on the property indefinitely. Their occupation
was a mere gesture of friendship and good will. In fact according to
the Defendants between 1972 – 1997 the family went through
turbulent times as their father was killed by Amin’s soldiers and
their mother also got murdered in 1977 when they were still
minors.

Those circumstances could have contributed to the continued

occupation of the Mulyantis of the suit property which they are now
trying to take advantage of. In the premises I find that the claim for
lawful occupancy is devoid of any legal basis. It is misplaced, if not
misconceived. That could be the reason why the late Moses
Mulyanti did not raise it during his good life time.
With regard to bonafide occupancy, Section 29 (2) of the Land Act
defines bonafide occupant as a person who before the coming of the
Constitution:-

(a) Had occupied and utilized or developed any land unchallenged

by the registered owner or agent of the registered owner for twelve
years or more before the coming into force of the 1995 Constitution.

(b)Had been settled on land by the Government or an agent of

Government which may include a local authority.

It was the contention of the Plaintiffs that the Plaintiffs had

proved that Moses Mulyanti had occupied, utilized and
developed the suit land unchallenged by the registered
proprietor or his agent for over 12 years since the coming in
force of the Constitution.

In Kampala District Land Bond and Chemical Distributor vs

National Housing Construction Corporation Civil Appeal No.2 of
2004 (unrepeated) a person who has been in occupation or
possession of the suit land for more than twelve years at the
time of the coming in force of the 1995 Constitution and
utilized the land without any challenge from the Registered
proprietor can claim bonafide occupancy.

The right to bonafide occupancy must be actual or real. It must

be based on unchallenged right. The right which is not capable
of being challenged does not bestow bonafide occupancy. In the
instant case the late Bataringaya bought the suit property from
Besweri Mulyanti who was the father of Moses Mulyanti. In
1970 Moses Mulyanti attempted to challenge Bataringaya’s
ownership of the suit property without success. After conceding
defeat Moses Mulyanti approached the late Bataringaya to buy
back the suit property but the request was turned down. In that
case although the late Moses Mulyanti continued staying on the
suit property, the Bataringaya family had no duty to levy any
further claim on the suit property which was already theirs or
to formally question the legality of the occupation of Moses
Mulyanti whom they knew had dropped any hope of regaining
ownership of the suit property and whom they were considering
as a mere caretaker. In deed it was the Defendants’ evidence
that when they wanted to develop the suit property they
informed Moses Mulyanti who requested to be given time to
vacate without laying any claim for bonafide occupancy. It was
after the death of Moses Mulyanti that the Plaintiffs created
their claim of bonafide occupancy. In my view this claim
cannot stand. It was a mere afterthought because the
occupation of Moses Mulyanti was with the knowledge that the
suit property had moved from his father to the family of
Bataringaya and his only option was to buy time and relocate.
It was because of the turbulent time the Bataringaya’s family
went through that enabled the status quo to arise. But I am
satisfied with the defence that the late Moses Mulyanti did not
enjoy bonafide occupancy. There was no actual or real right
bonafide occupancy. Bona fide occupancy is a right that
originates from a bona fide or real right. It is not a matter of
aspiration or emotion. It must be an actual right not a
sentimental right.

Issue No.5: Whether the Plaintiffs are entitled to the remedies and
reliefs prayed for in the plaint.

Having found that there was no lawful occupancy or bonafide

occupancy it is my finding that the Plaintiffs are not entitled to
the remedies and reliefs prayed for in the plaint. The Plaintiffs
should have been very grateful to the Bataringaya’s family for
allowing Mulyanti family to continue having their cake after
eating it. The Plaintiffs do not have any claims to pursue
against the Defendants.

Issue No.6: Whether the Plaintiffs have a lawful claim to the

structures on the suit land and are entitled to reliefs from damages
to the structures.

According to the Defendants the late Moses Mulyanti sought

permission and was allowed to erect semi permanent structures
on the suit land for the use of his workers. The law is trite that
a building erected on a piece of land becomes part of the
property of the land owner without any obligation on the land
owner to compensate the builder: See Francis v Ibitye (1936) MLR
11.

The late Moses Mulyanti sought and was granted permission to

construct semi permanent houses on the land for the use of his
workers. The houses were there to serve his purpose and
interest as and when he was still licensed to stay on the land.
The Defendants should have ordered the Plaintiffs to demolish
them at their costs if they had wanted.

Issue No.7: Whether the Defendants are entitled to the reliefs

sought in their defence.

It is my conclusion that the Plaintiffs have no lawful claim or

lawful occupancy of the suit land above the tenancy the
Defendants had originally granted them to enable them relocate
in good faith. The suit is therefore a non-starter. It is
accordingly dismissed with costs. It is accordingly ordered that
the Defendants are entitled to vacant possession of the suit
property and free to evict Nakato and Madina who are strangers
to the Mulyanti’s family and who are illegally occupying the
suit property.

If I had to find for the Plaintiffs I would have been required to

assess general and special damages. It is trite law that damages
must be pleaded and proved.

The Plaintiffs contended that their houses were damaged

extensively. However Counsel did not assist court by trying to
quantify the alleged damages to enable court to make an
assessment. However, considering that these were semi
permanent houses; built without the consent of the land owner,
I would award Plaintiffs Shillings five million by way of general
damages.

With regard to special damages this has to be specifically

pleaded and proved. The Plaintiffs never proved their claim for
special damages and I am not going to award any.
All in all, the Plaintiffs’ case is dismissed with costs, and it is
ordered that the Defendants get vacant possession of the suit
property and to evict the remaining occupants on the suit land.

Sewanyana v Aliker (CIVIL APPEAL NO.4 OF 1990) [1991] UGSC

8 (27 February 1991);

LIVINGSTONE SEWANYANA…....…….APPELLANT

AND MARTIN ALIKER …..…………………………..RESPONDENT

(Appeal from the Judgment and orders of the High Court of Uganda
at Kampala(Byamugisha Ag.J.) dated 11/8/1989)

IN

CIVIL SUIT NO.1015 OF 1987

JUDGEMENT OF ODER ,J.S.C.

This appeal arose from a suit which the appellant had brought
unsuccessfully against the respondent in the High Court for an
order to cancel the respondent’s certificate of title to 110.1 acres of
land at Nansana comprised in Vol.1531 FoI.11 (hereinafter called
“the suit property”). Other remedies sought in the suit were general
damages for trespass and an injunction. The respondent defended
the suit and after a trial in which the only issue was whether the
appellant’s own certificate of title to suit property was valid the
learned trial Judge on 11/8/1989 dismissed the suit and ordered
for cancellation of the appellant’s certificate of title. Hence the
appeal.
The Suit property had been owned by one Daudi Okech Ocheng
before his death apparently in 1966, under a certificate of title LHR
Vol. 14 Folio 7(exhibit P.6).

It was a leasehold granted from public land by the predecessor of

the Uganda Land Commission (hereinafter referred to as “the
Commission”), the controlling authority. The duration of the
leasehold was up 31/12/1982 when it was due to expire. After the
death of Ocheng the respondent as the administrator of his estate
became the registered owner of the suit property.

In 1982 the appellant applied for a lease of the suit property from
the commission. After the death of Ocheng the respondent as the
administrator of his estate became the registered owner of the suit
property.

In 1982 the appellant applied for a lease of the suit property from
the commission. After an apparent inspection by the local District
Land Committee (hereinafter called “the committee”) in accordance
with laid down procedures the committee reported favorably to the
commission on 3/4/1982 (exhibit D.1). In so doing the committee
was acting as agent of the commission. Consequently the appellant
was given an offer of a lease of the suit property on 11/8/1986
(exhibit p1) for an initial period of five years. The lease offer was
made by the Commissioner of Lands as the agent of the
Commission. Thereafter the appellant was issued with a certificate
of title dated 8/9/1986(exhibit p2) to the suit property.

It was the validity of that certificate of title that was the issue at the
trial of the suit, which the learned trial Judge decided against the
appellant.

In the meantime the respondent’s lease of the suit property expired

as it was due to do on 31/12/1982. Nothing was apparently done to
renew it until 15/8/1986 when the heir of the late daudi Okech
Ocheng wrote to the “the Registrar of Lands” a letter (exhibit P8)
explaining why the suit property had not been put to any farming or
economic activity. The letter applied for what the author called
“renewal of the title deed” of his late father to the suit property.
According to the only witness for the respondent at the trial of the
suit , Maria Gorrette Karuhanga Mangiga, a senior Registrar of
Titles (DW1) the commission acted on the application for renewal of
the respondent’s lease of the suit property and a new certificate of
title (exhibit P.7) was issued to him on 20/1/1987.There was a
discrepancy between the evidence of Maria (DW1) which was to the
effect that when an expired lease was renewed the renewal was
back-dated to continue from the old lease , and the new certificate
of title issued to the respondent ( exhibit p7) which was stated to
be for a period of 49 years from 1/1/1984. The effective date was
one year after the respondent’s original lease had expired. Maria
(Dw1) did not offer any explanation for this discrepancy.

Just over a month after the respondent’s new certificate of title had
been issued, the secretary to the commission on 24/2/1987, wrote
a letter (exh.p3) to the appellant informing him that the lease of the
suit property to him had been done in error because the land was
not available for leasing at the material time as the original lease to
the respondent had not yet expired. The Appellants certificate of
tittle (exh.p2) was, therefore, null and void and would be cancelled
by the Registrar of Titles. Indeed on 10/9/1987 the commissioner of
Lands wrote a letter (exh .p5) to the appellant’s lawyers stating that
a mortgage lodged by the appellant would not be registered on exh.
P5, because the same had been erroneously issued when there was
another overriding interest on the same piece of land. The latter
correspondence prompted the appellant to institute the court action
which has led to this appeal.
Six grounds of appeal were filed, but Mr. Zabwe learned Counsel for
the appellant, argued four, grounds one and four having been
abandoned. The Four grounds are:-

2” That the learned trial Judge erred in law in that she held that the
appellant’s title was issued at the time when the defendant’s title
was in existence when evidence on record was contrary to this
finding.

3. That the learned trial Judge erred in law in that she relied on
S.184 (c) and ignored s.184 (e) of the Registration of Titles Act
which was relevant to this case.

5. The learned trial Judge erred in law in that she held that the
applicant’s application was approved in 1982 when the evidence on
record did not support this finding.

6. That the learned trial Judge erred in law and fact in that she held
that the Land Committee’s report and the plaintiff’s application
contained false information that there was nobody claiming this
land when in fact the committee and plaintiff stated that actually
existed on the suit land”.

Mr.Zabwe argued ground five first, attacking the following finding of

the learned trial Judge:-

“There is sufficient evidence on record which has not been

Challenged that when the Uganda Land Commission granted the
plaintiff’s application for a lease, there was another lease in favour
of the defendant. The plaintiff’s title is therefore invalid……….

In the instant case the plaintiff was informed by the granter of the
lease, the Uganda Land Commission, that his title was invalid and
that his lease was offered to him in error. This error in my view
must be corrected since there can be no two certificates of title in
respect of one and the same piece of land.”

The Learned counsel then argued that in view of what the secretary
to the commission had informed the appellant in the letter of
24/2/1987 ( Exh P3) which , in his view , the learned trial judge
should have taken into account as part of the evidence on record ,
the learned trial Judge was wrong to have reached the conclusion
contained in the passage of her judgment I have referred to , the
part of exh .p3 on which the learned counsel relied for this
argument reads as follows:-

“You were given a lease by the Uganda Land Commission in 1983

over the same land for an initial period of five (5) years. This was
impossibility since in 1983 the lease by the late Daudi Ocheng had
not yet expired and Uganda Land Commission did not execute a
deed of re-entry. Therefore in 1983 the land was not available for
leasing to you by the Uganda Land Commission and any lease
issued to you in that manner was done in error and is considered
null and void.”

In mr. Zabwe’s view this letter showed that the appellant’s lease
was granted in 1983 when the respondent’s original lease had
already expired long before the same was subsequently renewed, as
it was in 1987. Contrary to the learned Judge’s conclusion, the
appellant’s lease was not granted in 1982 when the respondent’s
original lease was still valid.

With respect I find no merit in Mr. Zabwe’s Criticism of the

learned trial Judge in this respect. Admittedly on the face of it
exhibits p.3 stated that the appellant was given a lease in 1983,
when the lease by the late Daudi Ocheng had not yet expired. But
firstly, with regard to the date when the late Daudi Ocheng had not
yet expired, there was ample evidence and it was a common cause
between both the parties, that the date was 31/12/1982. The
reference in exhibit P3 that lease expired in 1983 must have,
therefore, been an error on the part of the author of the letter.

Secondly with regard to whether the appellant’s lease was granted

in 1983 , the evidence of Maria (DW1) who testified as a senior
registrar of Titles and other documentary evidence seems to amply
support the learned trial Judge’s finding on the point. This is what
Maria (dw1) said :-

“I know the certificate of title in respect of the plaintiff. I have both

titles because our office with-held the owner’s copy; when
Sewanyana brought his copy and the mortgage to be entered on the
register. The mortgage was not registered because there was
another existing title on the same and very piece of land in the
name of the defendant volume 1531 folio 11.When we pulled 1531
folio 11 it had come from an earlier grant which had expired volume
141 folio 7. The lease expired 31/12/82. I am holding a lease offer
in the names of sewanyana . Min. 8/2/82 (204) August 1982
Uganda Land Commission granted a lease to the applicant who had
applied for a lease. The grant was made under that minute. The
Uganda Land Commission approved Sewanyana’s application when
there was an existing lease. The Commission might have been
misled.”

This evidence was neither challenged nor controverted.

In addition to Maria’s testimony there is the documentary evidence.

The appellant in his evidence said that he could not remember
when he made his application (exhibit D1) for the lease , but it must
have been in 1982 because the committee’s inspection report and
recommendation (exh D2) is dated 3/4/1982 ; and on the
appellant’s completed application there appears an endorsement ,
“Approved ULC MIN/8/2/82 (a) (204) of August 82”. Although the
date is not shown , this to my mind appears to mean that the
commission approved the appellant’s application on some date in
August , 1982. After the hearing of the appeal Mr . Zabwe wrote on
2/10/1990 to this court suggesting that exhibit D1 as it appears on
the original record of the trial court is a copy, substituted wrong
instead of the original document which was admitted in evidence at
the trial of the suit, and that such a substitution must have been
intended to show that the appellant’s application was approved on
15th August, 1982. The learned counsel did not indicate under what
rule of procedure of this court he made such a written submission,
which in my view was improperly done. Be that as it may the
suggestion is incorrect, because on a proper examination of exh.D1
in the original record it does not appear to be a substitute.
Although it appears to be a Photostat copy, the learned trial judge
seems to have authenticated it by her signature. In any case I am
satisfied that on a careful scrutiny of what the learned counsel
suggests to be the date of “15 th August” on exhibit D1 it is actually
not so. That disposes of ground five of the appeal.

Next, Mr. Zamwe argued ground two. The main thrust of his
argument is that there is no legal requirement as to when an
application for a lease may be approved or rejected. In the instant
case , the appellant made his application for a lease of the suit
property in 1982 and was given an offer for the same on 11/8/1986
by which time, as was confirmed by the respondent’s letter of
15/8/1986 applying for a renewal of the lease , the respondent no
longer had title to it and the suit property was no longer in use; At
the time of the offer to the appellant the suit property had reverted
to the commission and so was available for leasing to anybody. The
appellant’s interest had already been registered when an inspection
was made on 10/12/1990 in respect of the respondent’s new
application, an offer for a lease made to him on 12/12/1986 and
his new lease registered on 19/1/1987. Mr zamwe’s argument have,
to my mind, raised questions concerning not only when the
appellant’s grant of a lease to the suit property was made but also
how the grant of a lease to the suit property was made but also how
the grant should be considered to have been made; the validity of
that grant in relation to the respondent’s original lease; and the fate
of the appellant’s application before and after the expiration of the
respondent’s original lease.

I think that it is adequate to consider it is adequate to consider the

issue of what act on the part of the commission should be regarded
as having been the grant of the appellant’s lease; that is to say
whether it was the decision contained in minute 8/2/82 (a) (204) of
August 1982, the offer of 11/8/1986 or the registration of the
appellant as the lessee on 8/9/1986. The answer to this question
would more or less dispose of all the others as well. The
Commission’s grant was in response to the appellant’s application
on a standard form (exh.D1) as he did not make any other
application.

The application forum was subsequently endorsed as approved by

a minute of the Commission. Thereafter, the offer issued to the
appellant also referred to the minute of the decision approving the
application. According to the evidence of Maria (D1) the grant was
made by the Commission’s minute 8/2/82 (a) (204) of August,
1982.

That is also what the secretary apparently intended to communicate

to the appellant by his letter of 24/2/1987. To my mind, the
secretary and Maria (DW1) were correct. The grant to the appellant
should be regarded as having been, and in my opinion it was made,
in August 1982 by the decision under the minute already referred
as testified to by Maria (DW1).The decision granting the lease
having been made in response to the appellant’s application, it was
not an internal matter not binding on the commission in relation to
the appellant. This would, in my view, appear to explain the
reference to the minute of the decision on the approved application
form and the lease offer. The grant made under that minute was the
root from which the offer and the appellant’s certificate of title
derived their validity. The grant having been made in August 1982
when the suit property was not available for leasing owing to the
respondent’s leasehold which was still subsisting at the time, the
Commission, in my view, was justified in wanting to cancel it as
communicated to the appellant’s lawyers by Exh.p.3. Further, in my
view, the appellant’s application in response to which the grant was
made should not have been considered and still less approved. It
was invalid when it was made because the suit property which it
applied for was not available for leasing. If the application had been
made or approved after the expiration of the respondent’s original
lease, the consequences would have been different.

The conclusion that the suit property was not available to the
commission to lease to the appellant when his application to the
commission to lease to the appellant when his application was
made and approved in 1982 on account of the respondent’s
leasehold which was still subsisting at the time in respect of the
same is supported by this court’s recent decision in the case of: The
Departed Asians property Custodian Board Vs. Benjamin
Anyadra, civil Appeal No.8 of 1989 (unreported). In that case the
appellant was the owner of the suit premises in Arua Town, vested
in it by the departed Asians Decree of 1973.In 1972 it allocated part
of the premises to one Haruna Ogorondu for use as a shop. Haruna
fled Uganda in 1979 and went to live in Zaire because of insecurity
prevailing in Arua District at the time. In 1982 the respondent
occupied the suit premises claiming that it had been allocated to
him by the Arua District Commissioner had in fact written to the
respondent permitting him to operate in the suit premises as the
agent of the appellant or of an allocation committee thereof. Haruna
returned from Zaire in 1985 and reclaimed the suit premises. He
also asserted that he had purchased the property from the
appellant in 1977 but that the transfer had not been registered. The
Expropriated properties Act 1982 had nullified all such sales and re
–vested the abandoned Asian properties (of which the suit premise
was one) in the appellant Board. Consequently Haruna sought and
obtained a new tenancy agreement from the appellant pending the
determination of his claim for ownership. But the respondent could
not give Haruna vacant possession of the suit premises, whereupon
the appellant had the respondent evicted from the premises. He
sued the appellant High court, claiming general damages for breach
of a tenancy agreement, tresspass, wrongful eviction and special
damages for property lost during the eviction. In his Judgment the
learned trial Judge held, inter alia, that the respondent was the
proper allocate of the suit premises and that there was a valid
tenancy agreement between the respondent and the appellant. On
appeal the decision of the court below was reversed and the appeal
allowed. On the question of whether the suit premises had been
validly allocate to the respondent Manyindo D.C.J. had this to say:-

“It was not disputed that the appellant had in 1977 sold the suit
premises to Haruna and that the appellant therefore had no interest
in that property until it was returned to them by the Expropriated
properties Act in February 1983.

It is true that the transfer of title was never effect but I think that is
immaterial. Until that the time Haruna was entitled to possession of
the property ….. the sale was valid until 21/3/1983 so that the suit
property was not available to allocate to the respondent as the
appellant had no proprietary interest in it in 1982 when it was
purportedly allocated to the respondent on its behalf.

And so even if it were proved that the appellant had in the fact
made the allocation the same would have been null and void for
that reason.”

In the instant case the Commission granted a lease and issued title
to the suit property to the appellant when the respondent’s title to
the same was in existence and when it had no proprietary interest
in the suit property until the expiration of the respondent’s title.
The Title issued to the appellant was therefore null and void.
Accordingly ground two of the appeal must fail.

Next, ground three. Here Mr. Zabwe argued that the learned trial
Judge relied on section 184 (c) of the Registration of Titles Act and
held that there was fraud when no fraud had been proved. The
issue of validity of the appellant’s title should have been decided on
the basic of priority under section 184(e) and not on fraud. The
appellant’s title was registered first when the respondent and none.
With respect, I find this ground devoid of merit for two reasons:-

Firstly the basis of the learned Judge’s decision was not that the
appellant had committed fraud but that there was already another
lease in favor of the respondent when the commission granted the
appellant’s application for a lease of the suit property. To my mind
the learned trial Judge referred to some falsehood on the part of the
appellant for the purpose of emphasizing the point that the
appellant only had himself to blame for having applied for a lease of
the suit property when the respondent’s in the same was still valid,
a state of affairs which the appellant ought to have known before
making his application. So he must suffer the consequences.
Secondly, the learned trial Judge never referred to sections 184(c)
or 184 (e) of the Registration of Titles Act. But by implication she
appears to have founded her decision on the provisions of section
184 (e) and not, contrary to the learned counsel’s views, and section
184(c). Consequently, this ground, too, must fail.

Finally, ground six. In this regard it is convenient to start by

contrasting what the appellant stated in his application form
(Exh.D1 ) on the one hand and the evidence of the appellant and
Maria (DW1) on the other other. In his application the appellant
stated “None” to the requirement,”state whether the land or any
part thereof is occupied by customary tenure or otherwise if so give
details.” In its report the Committee stated that “the land applied
for is available for leasing because the land is there and there is no
people claiming it”. It would appear that in view of what it stated on
this part of the form the Land Committee should have deleted the
words “is not” from “is/is not “appearing on the relevant line of the
form. On the reverse side of the form where it was required to give
any additional comments and recommendations for consideration of
the Land Committee, the report stated the following:-

In contrast to this the appellant said this in his evidence:-

“I was born at wakiso the nearest place to Nansana. There were

some buildings on the land .I did know the land belonged to Daudi
Ochieng. He got the lease in 1965. I got the information from the
Land office. I knew the property belonged to Ochieng and that the
lease had expired. I made a search and found that the lease had
expired. I applied in 1982. I wrote my application to the land
commission. I stated that I have been seeing the land vacant for a
long time. I cannot remember the month when I applied. The
Lease expired on 31/12/1982.My duty was to apply for land which
was free and the Land office should have informed me about the
lease.”

The evidence of Maria (DW1) after the passage I have already

referred to when considering ground two continues as follows:-

“On exhibit D.1 Sewanyana should have given details of any

existing developments on the land or other interests. The applicant
approached the District Land Commission. The Committee should
inspect the land and give its views. I was erroneously given. He
never disclosed to us that there was an existing title to the land.”

In View of all this evidence it is evident that the appellant did not
present a true picture of the status of the suit property to the
commission in his application, nor did the Committee in its
inspection report and recommendation to the commission. The
appellant did not inform the Commission, as in my view he ought to
have done, that there were some buildings on the land and that he
knew that the land belonged to the late Ocheng.He could not have
done a search in the lands office at the time or before he made his
application as he claimed in his testimony he had done. If he had
done so, he would have found that the respondent’s leasehold had
not yet expired before 31/12/1982. On the evidence available I
think that the appellant’s criticism of the learned trial Judge in
ground six is unjustified. There was ample evidence to support her
finding that the committee and the appellant had given false
information to the commission and that it could not be said that the
appellant applied for the lease because he thought that the land
was free.

I do not accept Mr. Zabwe’s argument that the duty of the

appellant and the Committee was simply to report what they had
observed on the site .I think that their respective duties demanded
more than that, namely to ensure by all possible means that the
land appellant was applying for and which the land committee was
recommending him to lease was not physically occupied or disputed
by some other person or persons; did also that nobody else had
other legitimate interest in it. Similarly I think that the commission
had a duty to ensure that before they considered or approved the
appellant’s application there was no other existing leasehold or
other registered interest in the land.

As it happened all three parties’ bear some blame for what

transpired. In the result I would dismiss this appeal with costs to
the respondent.

Before leaving this appeal I would like to comment that in a case

such as the instant where the validity of a grant of a lease or of
registered title to land or the cancellation thereof is in issue, the
grantor of the lease or the registrar titles as the case may be ought
to be made a party to the suit. In the instant case the commission
ought to have been joined as a party.

JOHN TUMWEBAZE..............................................APPLICANT
VS
1. THE UGNADA LAND COMMISSION)
2. THE ATTORNEYGENERAL ).....................RESPONDENTS

BEFORE: THE HON. MR. JUSTICE LAWRENCE GIDUDU

RULING
John Tumwebaze, hereinafter referred to as the Applicant by this
application seeks Judicial Review of the decision of the Uganda Land
Commission - hereinafter referred to as the 1 st Respondent, to cancel
the lease offer to him. He, by this application seeks an order of
certiorari to quash the decision of the 1 st Respondent contained in
Minute 1/2008 (a)(4) of 13th June 2008. He also seeks general
damages for inconveniences caused by the actions of thelst
Respondent.

The major ground for the relief sought is that the 1 st Respondent did
not give the Applicant an opportunity to be heard thereby violating
the Rules of Natural Justice by which public bodies such as the 1 st
Respondent are obliged to observe in the conduct of public affairs.

Mr. Ngaruye, learned counsel for the Applicant cited the celebrated
Author, H. W. Wade on Administrative law under the heading Right
to a fair hearing where the author discusses an an analogy from the
Book of Genesis in the Holy Bible where God is said to have given
Adam and Eve a hearing after they had eaten the forbidden fruit
before imposing a punishment. They were first heard before being
punished.

Mr. Wanyama learned counsel for the 1 st and 2nd Respondents

opposed the application contending that the 1 st Respondent had
powers under S. 53 of the Land Act to review its decision to offer the
Applicant a lease. In the alternative, Mr. Wanyama contends that if
the Applicant was not given a hearing then the court should refer the
matter to the 1st Respondent to give the Applicant the hearing. He
opposed a claim for damages since the Applicant is in occupation and
that each party should bear its costs.

The brief facts of this matter are that on 21 st September 2006, the 1st
Respondent offered the Applicant a 49 years’ lease subject to the 5
years of developments in respect of Plot M 11 Mbaguta Street in
Mbarara Town. A lease agreement was duly signed effective 1 st June
2008, the Secretary of the 1st Respondent communicated to Mr. B.
Makaru with a copy to the Applicant, a decision of the 1 st Respondent
that had cancelled the offer made to the Applicant following a
complaint of Mr. Makaru that he was the sitting tenant. The 1 st
Respondent had on 13th June 2008cancelled the offer to the Applicant
under Minute 1/2008 (a) (4). After the decision, the chairman of the
1st Respondent wrote to the Commission Land Registration to cancel
the title issued to the Applicant (Annexture “D”) and the Director of
the Privatization Unit followed with notice on 26/9/2008 (Annexture
“E”).
I have perused the “OS”, the affidavit of the Applicant and the
Annextures thereto and considered the deposition of Bonabana
Calorine which opposed the application. What comes out clearly as
the undisputed facts are that the 1st Respondent offered a lease to the
Applicant in respect of Plot M 11 Mbaguta Street Mbarara town which
it later cancelled, apparently upon a complaint by another person (B.
Makaru) who claimed to be a sitting tenant.

It is not in dispute that the cancellation was done without the

Applicant being offered an opportunity to respond to the claims made
by Mr. Makaru. It is this failure to be heard that the Applicant makes
the subject of this application where the 1 st Respondent through the
affidavit of Bonabana (para 10) depones that there is no law
compelling the 1st Respondent to hear the Applicant before cancelling
the offer and subsequent title. With respect, the deposition of
Bonabana Calorine of the Attorney General’s Chambers is made in
great ignorance of the basic principles of Administrative law which is
a subordinate branch of constitutional law consisting of the body of
rules which govern the detailed exercise of executive functions by
officers or public authorities to who are entrusted by the Constitution
to govern. The right to be heard is one such fundamental Rules under
this branch of law.
In an application for Judicial Review, the court is not concerned with
the correctness or fairness of the decision but is concerned with the
decision making process in arriving at the decision. This
 (e) Do such other things as may be necessary for or incidental to the
exercise of those powers and the performance of those functions.
And S. 23 of the Interpretation Act Cap 3 provides:
11. Where any Act confers a power on any persons to do or enforce the
doing of any act or thing, all such powers shall be understood to be also
given as are reasonably necessary to enable the person to door enforce
the doing of the act or thing.

Clearly, these two pieces of legislation do not empower the 1 st Respondent to

arbitrarily revoke a lease without giving the leaseholder an opportunity of
being heard why the lease should not be revoked. The provisions are not
applicable to this application and that leaves the Applicant’s claim
uncontroverted or unchallenged.

A key principle of Natural Justice is that a person cannot incur the loss of
liberty or property or livelihood unless he has had an opportunity of a fair
hearing.
See Wandsworth Board of Works (1863) 14 C. 3. (NS) 180 reported in Nut
cases - Constitutional and Administrative law
(fourth Edition) by Dr. Mawecu Spenser and John Spencer at P. 139. This is
an old common law principle which public bodies such as the Uganda Land
Commission have to observe in the performance of their functions.
Apparently, by the time the 1st Respondent cancelled the offer to the Applicant,
the Applicant had already obtained a land title on 25 th September 2007. The
Applicant was no longer a mere offeree of a lease but a Registered Proprietor
under the Registration of Titles Act (Cap.230). This has implications and
without going into details, there are procedures by which land under the RTA
may be de-registered. That may be for a future substantive suit.

For now, the proceedings before me reveal that the 1 st Respondent violated the
rule requiring the Applicant to be heard before his lease offer could be
cancelled. The objection to this application has been lukewarm and just fell
short of admitting that the 1st Respondent acted without hearing the
Applicant’s side. Consequently, the proceedings leading to the decision
contained in Min. 1/2008 (1) (4) of June 13 th 2008 are faulted for reasons
discussed above and the decision revoking or cancelling the Applicant’s lease
offer and subsequent directives to deregister his proprietorship are hereby
quashed.
The 1st Respondent is directed to hear the Applicant’s objection before any
decision is made regarding the proprietorship of Plot M 11, Mbaguta Street
Mbarara town.

There was no evidence regarding any special damage suffered by the

Applicant, however the annextures to his affidavit show that since he went
into occupation, he has been in litigation and this has affected his plans to
develop the property. For this inconvenience I shall award damages.
Considering that the first five years the Applicant should have developed the
property expire in September 2011 which is about
2 years to go, but taking into account the fact that the Applicant is in
occupation of the premises and collecting rent, I consider the sum of Ten
million reasonable as general damages. The Applicant gets rental income from
the property todate.
I award the Applicant costs of this application.

Before taking leave of this matter, I wish to observe that having read the
proceedings in C.S. 42/2007 which was struck off on technical grounds and
after perusing the various correspondences in this matter, it might be
advisable in future for either the Applicant or the 1 st Respondent to bring a suit
under Order 7 CPR for the effective determination of their respective rights
after taking evidence.
Lawrence Gidudu J u d g e

Wasswa v Commissioner Land Registration & 2 Ors (MISCELLANEOUS

CAUSE NO. 89 OF 2014) [2014] UGHCCD 138 (5 November 2014);

WASSWA PETER WERAGA ::::::::::::APPLICANT

VERSUS

1. COMMISSIONER LAND REGISTRATION

2. ATTORNEY GENERAL
3. ADMINISTRATOR GENERAL =====RESPONDENTS

BEFORE: HON. LADY JUSTICE ELIZABETH MUSOKE

RULING

This is an application for Judicial Review by way of Notice of Motion based

on Section 33, 36(i), 37 and 38(i) of Judicature Act and rules (i) and 6 of
Judicature (Judicial Review) Rules 2009, seeking for the following orders;

1. Prohibition and or injunction restraining the respondents from

investigating and interfering with the applicant’s administration of the
estate of late Ibrahim Kigula and Isaaka Kagimu in respect of land
formally described as Kyaggwe Block 101 Plot 60 of unascertained
 portion, approximately 69 acres at Misindye, Mukono District, herein
the suit land.

2. Certiorari, quashing all proceedings pending before the 1 st respondent

in respect of the suit land.

3. An order that the 1 st respondent lifts the embargo on the applicant’s

transactions on the estate land under his administration.

4. Costs of the application be provided for.

The grounds on which the application is based are:

i. The suit land formed part of the estate property of late Ibrahim Kigula
and Isaac Kagimu and after their demise, the applicant secured letters
of administration and probate respectively for the two estates and
pursuant thereto, he mutated the suit land to white pages under
Registration of Titles Act, sub-divided it into several plots, sold and
transferred some to third parties.
ii. In the 1st applicant’s course of administration of the estates, one Peter
Nkeeto Bigomba sued him in the High Court at Jinja, under Civil Suit
No. 75 of 2012, claiming the whole estate’s suit land as a beneficiary
and the suit terminated into a consent judgment and decree in favour
of the applicant.
iii. Based on first acquired letters of administration which was forged and
issued to the applicant by the High Court under HCT-00-CV-AC-86-
2003 for the estate of late Ibrahim Kigula, of which the applicant was
charged but later the police cleared him of any wrong doing and the
Director of Public Prosecutions Office recalled the criminal charges file
for his prosecution, but the State Attorney and police nonetheless went
 ahead with the prosecution at Buganda Road Court and proceedings
are on-going.
iv. After the applicant became aware that court had issued to him forged
letters of administration which he had used to transact on the estate
land titles in mailo office Mukono, he applied and obtained a valid grant
which he presented to Lands Office for regularization of titles, which
was made but the 1 st respondent nonetheless served on the applicant
notice to effect changes in the Register on the suit land and stopped all
the applicant’s transactions on land of which the applicant is the estate
administrator, on the ground of alleged fraudulent registration and the
3rd respondent moved police to investigate the applicant, when all of
them have no legal authority to do so.
v. The 2nd respondent is vicariously liable for the unlawful acts of the
police and State Attorney at Buganda Road Court.

The application was supported by an affidavit in support filed on

5/8/2014 and another one in rejoinder filed on 19/9/2014 deponed by
Waswa Peter Weraga, the applicant.

It was opposed by the 3 affidavits as follows:

An affidavit in reply filed on 16/9/2014 on behalf of the 1 st respondent,

and deponed by Wamala Ali, a Registrar of Titles in the Ministry of Lands,
Housing and Urban Development, wherein he averred that:

1. The application was premature, improper, and incompetent.

2. In acting on a complaint from the beneficiaries of the late Ibrahim
Kigula, the 1 st respondent was exercising her mandate conferred on her
under the Land Act Cap. 277 and Registration of Titles Act, Cap. 230.
3. The applicant was speculating about cancellation of his registration yet
the 1st respondent had not yet reached any decision. She had not
committed anything ultra vires her powers.
4. The granting of the orders as sought would be curtailing the 1 st
respondent’s mandate under the law.
5. The applicant had never been discharged in any competent court of
charges against him over the same matter.

2) An affidavit in reply filed on behalf of the 2 nd respondent on

16/9/2014, deponed by Harriet Nalukenge, a Senior State Attorney in
the Attorney General’s Chambers, stating that:

a) The applicant’s case had no possibility of success.

b) There was no cause of action disclosed as against the 2 nd

respondent as the 2 nd respondent was not seeking to interfere in

any way in the administration of the estates of the late Ibrahim
Kigula and Isaac Kagimu.

3) Another affidavit in reply filed on 16/9/2014 and another one in

surrejoinder filed on 30/9/2014, on behalf of the 3 rd respondent by
Mpagi Peter Kasule, a beneficiary of the estate by the Late Mikairi
Kiwanuka Mukoloboza under the administration of the 3 rd respondent
vide Administration Cause No. 0180 of 2012 granted on 12/4/2011,
who averred that:

a) The late Mukoloboza was a beneficiary of 10 acres of land

from the estate of Ibrahim Kigula which was distributed under
succession Register Page 5 Volume 699.

b) The applicant fraudulently used forged letters of

administration to cause a mutation/sub-division of the land
comprised in Kyaggwe Block 101, Plot 60 Mailo registered Vol.
47 Folio 15 to the detriment of the estate of Mukoloboza’s
beneficiaries.
 c) The DPP has never cleared the applicant on charges of
forgery.

d) That the 1 st respondent had all the powers to rectify the

register where an illegality is brought to her attention.

When the case came up for hearing, the respondents raised several
preliminary objections.

It was the case for the 1 st respondent in her preliminary objection that she is
the Commissioner Land Registration with the mandate to handle all land
matters in Uganda; deriving her powers and authority from the Registration
of Titles Act, Cap. 230, and the Land Act, Cap. 227, as variously amended.
On that basis, the Commissioner Land Registration performs administrative
powers.

In the instant, the Commissioner Land Registration/1 st respondent

complaint from people who claimed to be the beneficiaries of the suit land,
as per Annexture ‘A’ to the affidavit in reply in relation to land comprised in
Kyaggwe Block 101 Plot 60 Misindye Mukono. By virtue of her office the 1 st
respondent was duty bound to act, and so by her letter dated 23 rd January
2014, she invited all the parties for a public hearing. (See Annexture ‘B’ to
the affidavit in reply of the 1 st respondent). She exercised her administrative
powers as envisaged under S. 91 of Land Act. All the parties including the
applicant responded to the summons. The public hearing was conducted
and she is due to give her decision on the matter as per the complaint lodged
and hearings conducted.

As to whether the acts of the 1 st respondent were ultra vires when no

decision was yet to be taken, Counsel for the 1 st respondent relied on the
definition of ultra vires which meant “beyond powers, doing an act not
within your powers or authority”. (The source of the meaning was not
disclosed). Counsel submitted that as long as the 1 st respondent was
properly exercising her powers as mandated under the law, to wit, S. 91
Land Act and S. 165 of Registration of Titles Act Cap 230, her acts were not
ultra vires.

Counsel submitted further that the applicant had a remedy under S. 91 (10)
of the Land Act Cap. 227 in the event that they are dissatisfied with the 1 st
respondent’s decision which is yet to be taken. He relied on Uganda Taxi
Operators and Drivers Association Vs Kampala Capital City Authority
and Executive Director Kampala Capital City Authority Misc.
Application No. 137 of 2011, where the applicant sought judicial review
when the respondent had written a letter intending not to extend the
applicant’s contract, and the case was found not fit for judicial review since
there was nothing ultra vires to prohibit and or quash. Counsel concluded
that this application was not fit for judicial review since no decision had
been taken and even then, the acts of the 1 st respondent were within her
mandate as by law established.

The second preliminary objection raised by the 1 st respondent is that the

application is misconceived, baseless and a waste of court’s time; and it is
an abuse of court process, as the applicant seeks to prohibit the 1 st
respondent from performing her administrative functions mandated under
the law. Counsel relied on Hon. J.K. Muhwezi Vs Attorney General and
IGG: H/C Misc. Cause No. 56 of 2007 to state that courts have been
reluctant to interfere with the administrative functions of bodies where there
is nothing ultra vires being done. Halting the 1st respondent from exercising
her powers, therefore, would be fettering her mandate under the
Constitution, the Registration of Titles Act, and the Land Act.

Counsel concluded that this case was not fit for judicial review, and it ought
to be dismissed with costs, and the preliminary objections upheld.
In his submission on a preliminary point the 2 nd respondent gave further
background to the case as follows:

The late Ibrahim Kigula prior to his demise was the registered owner of
Kyagwe Block 101 Plot 60 measuring 69.0 acres of land at Misindye. On his
death the land was distributed amongst his beneficiaries to wit: Mikaili
Mukoloboza who was given 10.0 acres as per the succession register book 5
page 669. A report of death was lodged to the Administrator General upon
which he took over the administration of the estate of Mikaili Mukoloboza
vide Masaka Administration Cause No. 0180 of 2010.

In the course of the administration of the estate, the Administrator General

demanded for a transfer of 10.00 acres out of Plot 60 to the beneficiaries of
the late Mikairi Mukoloboza and also requested for an area schedule from
Mukono Land Registry. It was then discovered that the entire plot 60 had
been subdivided and all the land thereon was registered in the names of the
applicant.

In light of the above, the Administrator General lodged a complaint to the

Police Land Protection Unit on the 21 st day of November 2012 requesting for
investigation and to find a way of recovering the land due to Mikairi
Mukoloboza.

Police embarked on the investigations after which they forwarded the file to
the DPP for prosecution of the applicant. A case file referenced as CRB No.
163 of 2013 was opened and is still ongoing at Buganda Road Court.

Counsel submitted that the application was trying to frustrate the

prosecution as the applicant was still on trial, and had not fully exhausted
all possible remedies available. This case is not fit for judicial review as the
orders sought for, and the procedure, are inappropriate under judicial
review. The civil action instituted by the applicant against the 1 st
respondent is only intended to cripple the 2 nd respondent’s agents in
performance of their duties. Counsel prayed that the application be
dismissed.

On the preliminary objection raised by the applicant regarding the

competency of Mpagi Peter Kasule to depone to an affidavit in support of the
3rd respondent’s case yet he was not a party to the application, the 3 rd
respondent submitted that a deponent to an affidavit need not be a party to
a matter or application before court. Order 19 rule 3 of the Civil Procedure
Rules, inter alia, provided that an affidavit shall be confined to such facts as
the deponent is able of his or her own knowledge to prove.

Mpagi Peter Kasule, is a beneficiary to the estate of Mukoloboza as stated in

his affidavit in reply. It is pertinent to note that the 3 rd respondent holds the
said letters of Administration in trust of the beneficiaries of the estate of the
late Mikairi Kiwanuka Mukoloboza; Mpagi Peter Kasule is one of the
beneficiaries and with full knowledge of all facts pertaining to this
application. (See Dr. Besigye Vs Museveni Yoweri Kaguta and Electoral
Commission (Electoral Petition No. 1 of 2001).

Counsel concluded that Mpagi Peter Kasule was competent to depone to the
affidavit in issue as he was well conversant with all facts pertaining to this
application; he is one of the beneficiaries of the estate of the late Mikairi
Kiwanuka Mukoloboza; and the application before court arises from the said
estate. He invited court to dismiss the application with costs.

In reply to the 1 st respondent’s submission that the application was

premature, improper and incompetent, the applicant submitted that it was
not within the 1 st respondent’s powers to investigate matters of fraud and
those already decreed upon by court. To act upon such amounted to active
ultra vires her powers laid down in Section 91 (1) and (2) of the Land Act.
(See paragraph 14 of the applicant’s affidavit in support).
On the Commissioner Land Registration’s powers to handle matters of fraud,
Counsel relied on Olivia Sanyu & Anor Vs Commissioner Land
Registration Civil Appeal No. 6 of 2013, to state that the power to deal
with issues regarding fraud in any land dealing under the RTA and Land Act
lay with the High Court of Uganda, and not the Commissioner Land
Registration, who acted outside her legal mandate and therefore her decision
was a nullity and ultra vires.

On matters already entertained by court, he relied on Gordon Sentiba and

Others Vs Inspectorate of Government Civil Appeal No. 06 of 2008 for
the proposition that a judicial decision between the parties is res judicata as
between them, and should be respected by all the parties and all the
authorities until set aside in accordance with the law.

Further the applicant had deponed in paragraph 10 of his affidavit in

support that he was a decree holder for the entire suit land. The decree had
not been set aside by a competent court and it is a judgment in rem to be
respected by every person and authorities including the Police, and the 1 st
and 2nd respondents. They had no power to investigate a matter already
decreed upon.

On the 1st respondent’s second preliminary objection that the application

was misconceived, baseless and an abuse of court process, Counsel
submitted that to investigate matters of fraud in land matters and those
already adjudicated upon by court of law are not constitutional functions of
the 1st respondent, under the provisions of the Land Act, and The
Registration of Titles Act. The action of the applicant to file for judicial
review was, therefore, not frivolous or vexatious. Counsel relied on Denis
Bireje Vs Attorney General Misc. Application No. 902 of 2004 (Arising
out of Misc. Cause No. 190 of 2004) cited in Semakula Sulati Vs
Commissioner Land Registration & Attorney General Misc. Cause No.
75 of 2009 9page 17) to state that administrative actions will be subject to
judicial control for illegality, irrationality, procedural impropriety and other
grounds which have been added.

He concluded that the 1 st respondent’s acts are ultra vires and therefore fit
for restraint by way of judicial review.

On the submissions by the 3 rd respondent in reply to the applicant’s

preliminary objection that Mikairi Kiwanuka Mukoloboza lacked the
competence to depone the 3 rd applicant’s affidavit, Counsel submitted that
Mpagi Peter Kasule was not an agent of the respondent. Order 3 of the Civil
Procedure Rules defines an authorized agent to include an advocate, or a
person with powers of attorney. The affidavit in question was signed in
representative capacity without written authority as required by the law.
(See Kaingana Vs Dabo Boubou [1986] HCB 59. He also relied on
Emmanuel Lukwajju Vs Myers Mucunguzi & Nester Byamugisha Misc.
Application No. 862 of 2011 (Arising from Civil Suit No. 346 of 2011 &
Misc. Application No. 815 of 2011) where a clerk in a law office was said
not to be an agent of a party. Counsel asked court to find the affidavits
sworn by Mpagi Peter Kasule as incompetent, and the preliminary objections
disallowed.

In her submissions in rejoinder, on the allegation that 1 st respondent’s

actions were ultra vires as she is investigating fraud as against the
applicant, Counsel for the 1 st respondent rejoined that the 1 st respondent
was well versed with her powers under the Land Act, to wit S. 91 Land Act;
and she was only exercising powers vested in her under the law. Counsel
referred court to the relevant part of S. 91 of Land Act as amended which
contains the powers of the 1 st respondent.

From the law referred to and the correspondences addressed to the

applicant, the 1st respondent was only investigating matters within her
powers as per the law. During the exercise of her administrative powers,
both parties are accorded a fair hearing as was in the instant case. Further,
the parties have a right to appeal against this decision within 60 days before
action is taken.

Counsel submitted further that vide Annexture ‘B’ titled “Notice of intention
to effect changes in the Register”, the 1 st respondent clearly stated that she
was investigating what could have been “errors” and further stated that the
same could have been procured “wrongfully”. She clearly was not
investigating fraud as alleged by the applicant. All she is investigating is
what appears to be a registration which could have been done in error or
wrongfully, which powers the Land Act clearly confers upon her. Counsel
also reiterated that the 1 st respondent had not even arrived at a decision. He
relied on Steven Pepe Vs The Commissioner Land Registration and 2
Others Misc. Application No. 393 of 2011 for the proposition that when
the public hearing where the applicant was heard had been conducted but
the 1st respondent was yet to communicate her decision, it would be mere
speculation to conclude that the Commissioner would or would not cancel
the certificate of title, or to grant a temporary injunction on an apprehended
decision which could fall either way.

Counsel reiterated that the applicant’s application was premature and

incompetent since the acts as carried out by the 1 st respondent were not
ultra vires her mandate, thus did not require judicial review at such a
stage. Counsel reiterated the earlier prayer that there were no ultra vires
acts committed by the 1 st respondent thus the application was premature
and, or incompetent thus should be struck out with costs.

On the allegation that 1 st respondent’s investigations were ultra vires as the

matter had already been decreed upon by court, Counsel submitted that
there was no court order or decree on record proving the same; and there is
no order and or judgment between the applicant and the complainants who
moved the 1st respondent to cause an investigation. All the applicant had
was a consent judgment between him and someone completely different from
the complainants who had a completely different claim. The complainants
herein are different.

In any case, even if there was an order, the same would not stop the 1 st
respondent from carrying out her mandate if she finds that there was an
error in registration, or that a registration was done wrongfully. Curtailing
the 1st respondent from performing her duties would be stopping her from
exercising her administrative powers enshrined in the constitution and the
Land Act.

Counsel reiterated the prayer that the preliminary objection be upheld and
the application be struck out with costs to the 1 st respondent.

In reply to the 2 nd respondent’s submission on preliminary objections, that

Mikairi Mukoloboza was given 10 acres on the estate of late Ibrahim Kigula
after his death, Counsel for the applicant submitted that this was only
correct in so far as it is inserted so in the Succession Register, but false in
that there was no such authentic distribution. The rest of the distribution,
which was authentic, was done and signed against the beneficiary’s name by
the Kabaka of Buganda but no such signature appears against distribution
of 10 acres to Mikairi Mukoloboza. (See Succession Register annexed as
“P1” to the plaint in the notice dated 30/01/2014 marked “Q” to the
applicant’s affidavit in support of the application).

Further still, the action of the police, for which the 2 nd respondent was
vicariously liable, was irregular in law when a competent court of law, High
Court, had decreed the applicant as owner of suit property (Annexture “H(3)”
to the applicant’s affidavit in support of the application). Counsel further
contended that the Director of Public Prosecutions had recalled the police
file on the applicant’s prosecution but the police and Resident State Attorney
refused to surrender the file to DPP (See Annexture “S”).

Counsel concluded that it was pertinent and permissible under the law for
the applicant to file a judicial review application for an order of prohibition,
so as to pre-empt the respondent’s unlawful actions before being done or
completed.

I have considered the pleadings and submissions from either side and the
law and authorities relied on. I note that the applicant seeks to restrain,
through prohibition or injunction, the respondents from interfering with his
administration of the estate of the late Ibrahim Kigula (suit land); through
certiorari to quash all proceedings before the 1 st respondent in respect of the
suit land; and that the 1 st respondent lifts the embargo on the applicants
transactions on the suit land.

With respect to the prayers against the 1 st respondent, I will reproduce here
below the letter from the 1 st respondent which kicked off the impugned
proceedings, in extenso;

“THE REGISTRATION OF TITLES ACT (CAP. 230)

AND

THE LAND ACT (CAP. 227)

KYAGGWE BLOCK 101 PLOT 60 (AND OTHERS) LAND AT MISINDI

NOTICE OF INTENTION TO EFFECT CHANGES IN THE REGISTER

To: Wasswa Peter Weraga

Administrator of the estate of

 the late Ibrahim Kigula

P O Mukono

This office has received a complaint from the beneficiaries of the

estate of the late Ibrahim Kigula and Mikairi Mukoloboza to the
effect that you acquired forged letters of administration. That
you used these forged grant and fraudulently got registered upon
the estate of their deceased grandfather Ibrahim Kigula, thereby
alienating them from this estate. They further state that your
registration was done in error and therefore should be cancelled.

Perusal of the Register revealed the following:

1.That under instrument MKO94446 dated 12/6/2008; you got

registered as an administrator of the late Ibrahim Kigula under
Administration Cause No. HCT-00-CV-AC-86-2003 of the High Court of
Uganda.

2.That the letters of administration purportedly used by you to have

yourself registered upon the title register are forged and that there is
a High Court document to prove.

3.That using this fraudulent grant of Letters of Administration, you

caused various subdivisions of Kyaggwe Block 101 Plot 1491 (1942-
4495).

4.That thereafter, you transferred these subdivided plots into various

transferees.
5That all these were done in error as you were not the rightful
beneficiary /administrator to pass on good title.

6. That there is an authenticated succession register with the

Administrator General providing for the proper distribution of
this estate.

NOW THEREFORE in accordance with S. 91 of the Land Act, you are

hereby given notice that I intend to have the Register rectified by
cancelling the above described titles for having been obtained
wrongfully.

You are required to bring the Duplicate Certificate of titles in your

possession for cancellation and also let me know if there is any
objection to my proposed action. You should respond to this notice
within 21 days from the date of service on you thereof.

You are also invited for a public hearing on the 13 th day of February
2014 at 8.30 a.m. in the Ministry Board Room. By copy of this notice,
the complainants and all other transferees are hereby also invited to
attend the hearing and to bring along all documents pertaining to the
ownership of this property.

The Registrar of Titles Mukono is also required to attend.

Dated this ………23 rd ……day of ……January… 2014.

……sign…….

COMMISSIONER LAND REGISTRATION

c.c. Administrator General/Public Trustee

 P O Box 7151, Kampala”

It is not in dispute that the applicant gave his response to the letter
and even attended the public hearing, and that a decision of the 1 st
respondent is still awaited.

The 1st respondent states that she derives her powers from S. 91 (2) of the
Land Act Cap 227, which states:

(2) The Commissioner shall, where a certificate of title or

instrument;

(a) is issued in error;

(b) contains a mis-description of land or boundaries;

(c) contains an entry or endorsement made in error;

(d) contains an illegal endorsement;

(e) is illegally or wrongfully obtained; or

(f) is illegally or wrongfully retained,

give not less than twenty one day’s notice, of the intention to
take the appropriate action, in the prescribed form to any party
likely to be affected by any decision made under this section;
and

(2a) The Commissioner shall conduct a hearing, giving the

interested party under sub-section (2) an opportunity to be
heard in accordance with the rules of natural justice, but
subject to that duty, shall not be bound to comply with the
rules of evidence applicable in a court of law.
 (2b) Upon making a finding on the matter, the
Commissioner shall communicate his or her decision in
writing to the parties, giving the reasons for the decision
made, and may call for the duplicate certificate of title or
instrument for cancellation, or correction or delivery to the
proper party.”

The 1st respondent did summon the applicant for the public hearing, and he
is indeed not complaining about this. The 1st respondent carrying out
investigations and Section 2(b) above requires the 1 st respondent to
communicate her decision in writing to the parties, giving reasons there for.
This has not yet happened. Depending on her decision and reasons thereto,
that is when any affected party can allege any ultra vires by the 1 st
respondent.

In the said letter the 1 st respondent stated that there was a complaint about
fraudulent transactions on the suit land, also alleging that the applicant’s
registration was done in error and hence should be cancelled. She is
empowered to rectify the register in case of titles issued in error or where the
title has been illegally or wrongfully obtained or retained inter-alia. She can
only come to such conclusion through investigations. By stopping her from
such investigations, this court would be fettering her powers, and throwing a
clog in her investigative machinery, yet her office is duty bound to carry out
investigations where there is a complaint falling within the ambits of S. 91.

The applicant has also complained that the matter has already been decreed
upon by a court of competent jurisdiction hence the action of the 1 st
applicant investigating the matter is ultra vires.

I have not found on record any court order or decree to this effect. What is
referred to by the applicant is a decree from a suit between himself and one
Peter Nkeeto Bigomba, a person completely different from the complainants
in this respect. The case was High Court Civil Suit No. 75 of 2012 (Jinja).

It is therefore my finding, in agreement with the 1 st respondent that this

application is premature in her respect in that no decision has been
communicated to the applicant, and that the 1 st respondent is acting
intravires. I declare so.

In respect to the Attorney General, who is stated to be vicariously liable for

the actions of the police who are carrying out investigations into the way the
registration of the applicant on the suit land was effected, it is not in dispute
that there is both a criminal and civil case going on in respect of the suit
land. It is the applicant’s complaint that the Police has continued to
investigate this matter when the DPP said there was no case. They have also
continued with the prosecution of the applicant. With respect to the criminal
matter, there is no way this civil court can interfere in the proceedings of a
criminal nature, or to stop Police from performing their duties where a
complaint has been raised. It is not in this court’s place to even advise the
applicant on what other steps to take to pursue his rights in this respect.
All I can say is that this complaint is misplaced, and that should it
transpire at the end of the prosecution that there was some malice on the
part of the prosecution, that is when a civil case can be instituted; and that
is when this court can intervene, if called upon to do so. I find that the suit
against the 2nd respondent is also misconceived.

As for the 3 rd respondent, it was alleged that the Administrator General

moved police to investigate the applicant on allegation by the 1 st respondent
of fraudulent transactions on the suit land. The role of police is to
investigate crime, among its other duties. And if the 3 rd respondent smelt a
rat in the transactions that led the applicant to register himself on the suit
land, part of which the 3 rd respondent was administering, they were duty
bound to call on police to investigate if they thought there were some
criminal offences committed in the process. The suit against the 3 rd
respondent is therefore misconceived and is also dismissed with costs. I so
declare.

I have had to delve in matters which should have been for the main suit but
this is because the parties themselves have submitted on them. I have
therefore had to dispose of this application at this juncture.

Consequently, I find that this application is premature with regard to the 1 st

respondent and is misconceived in respect of all the three respondents. The
preliminary objections are upheld.

The main application is therefore also hereby dismissed with costs to the
respondents.

It is so ordered.

Elizabeth Musoke

JUDGE

5/11/2014

Naku & 2 Ors v Commissioner Land Registration & Anor (CIVIL APPEAL
NO. 064 OF 2010) [2012] UGHC 209 (18 October 2012);

(ARISING OUT OF A DECISION OF THE COMMISSIONER LAND

REGISTRATION)

1. SARAH NAKKU
 2. NAKIMULI MARIAM
3. ZAWEDDE THURAYYA………………………………………………
APPELLANTS

VERSUS

1. THE COMMISSIONER LAND REGISTRATION

2. THE ADMINISTRATORS OF THE ESTATE

OF THE LATE YULIANA NAKATUDDE…………..….…..………RESPONDENTS

BEFORE HON LADY JUSTICE PERCY NIGHT TUHAISE

JUDGEMENT

This is an appeal by the appellants brought under the section 91(10) of the
Land Act cap 227, Article 139 of the Constitution and section 33 of the
Judicature Act, against the orders/decisions of the Commissioner Land
Registration, for orders to set aside the said orders and to allow the appeal
with costs.

The brief facts of the case as presented by the appellants are that they are
the registered proprietors of land registered as Mawokota Block 92 Plot 176
land at Mpami. On 16 th April 2010 the 1 st respondent allegedly wrote to the
appellants a notice of intention to effect changes on the register on grounds
that:-

1. It is alleged that the late Yuliana Nakatude sold only two acres of
the above mentioned land. That this is confirmed by the copy of
the sale of land agreement availed to her office.
 2. That when the duplicate certificate of title was availed to the
appellants’ mother for purposes of sub division and transfer of
the two acres, she went ahead and transferred the whole title.
3. That she received a copy of the record of proceedings of criminal
case no. 422 of 2009 of the Chief Magistrate’s court of Buganda
Road where the appellants’ mother pleaded guilty to the charges.
4. That since the appellants’ mother is entitled to 2 acres out of the
32.4 acres this error has to be corrected by cancelling the
appellants’ entries on the title.

On the 10th June 2010 the 1 st respondent allegedly issued the second letter
to the appellants cancelling their proprietorship of the said land. The
appellants appealed against the order on the following grounds:-

1. The Commissioner erred in law and fact by not giving the

appellants an opportunity to be heard before cancelling their
title, a violation of the canon principle of natural justice.
2. The Commissioner erred in law and fact by cancelling the
appellants’ title without effecting proper service on them.
3. The Commissioner erred in law and fact by cancelling the
appellants’ proprietorship of land registered as Mawokota Block
92 Plot 176 basing on falsehoods and lies by the 2 nd respondent.
4. The Commissioner erred in law and fact by cancelling the
appellants’ proprietorship of the above described land over
matters that were being adjudicated upon in the courts of
Judicature vide High Court Civil Suit No. 98 of 2008
5. The Commissioner erred in law and fact by cancelling the
appellants’ proprietorship on the above land basing on non
existent documents or forged documents.
Before delving into the merits of the appeal, it may be stated that this appeal
should have been brought before the District Land Tribunal since the
appellant filed it under section 91(10) of the Land Act. This section provides
that any party aggrieved by the decision or action of the registrar under this
section may appeal to the District Land Tribunal within 60 (sixty) days after
the decision was communicated to the party. The challenge rightly pointed
out by the appellants’ Counsel however is that the Land Tribunals are no
longer in existence. He cited the case of Sebirumbi Kisizingo V The
Commissioner Land Registration & Another, Civil Appeal No. 16 of 2010
where Justice Aweri Opio faced the same situation and held that Practice
Direction No. 1 of 2006 gave courts jurisdiction in all matters which were
being handled by the Land Tribunals. Counsel for the appellant also
submitted that this court has jurisdiction to handle the case under Article
139 of the Constitution and section 33 of the Judicature Act

Article 139 of the Constitution gives the High Court unlimited original
jurisdiction in all matters and such appellate and other jurisdiction as may
be conferred on it by the Constitution or other law. Section 33 of the
Judicature Act also grants powers to the High Court to grant absolutely or
on such terms and conditions as it thinks fit, all such remedies as any of the
parties to a cause or matter is entitled to in respect of any legal or equitable
claim properly brought before it, so that as far as possible all matters in
controversy between the parties may be completely and finally determined
and all multiplicities of legal proceedings concerning any of those matters
avoided. Practice Direction No.1 of 2006 provides that following the expiry of
contracts of chairpersons and members of the District Land Tribunals,
magistrates’ courts presided over by a Magistrate Grade 1 and above shall
continue to have jurisdiction in land matters in accordance with section
95(7) of the Land Act. This Practice Direction was made to enable
magistrates’ courts to exercise jurisdiction in land matters until new
chairpersons and members of District Land Tribunals are appointed or
otherwise.

This implies that a magistrate’s court presided over by a Magistrate Grade 1

and above could have entertained this matter. However, since the High
Court has unlimited original jurisdiction under the Constitution and the
Judicature Act, it can also entertain the same matter.

I would, in view of the foregoing provisions, agree that this court has the
jurisdiction to handle this matter. In any case the same matter could also
have been handled by this court under section 182 of the Registration of
Titles Act. It is on that basis that I will proceed to entertain this matter.

Ground 1: The Commissioner erred in law and fact by not giving the
appellants an opportunity to be heard before cancelling their title, a
violation of the canon principle of natural justice.

Ground 2: The Commissioner erred in law and fact by cancelling the

appellants’ title without effecting proper service on them.

Counsel for the appellant argued grounds 1 and 2 together. He submitted

that though the Registrar has special powers to cancel a certificate of title
under section 91(2) of the Land Act, she/he cannot do so without providing
the other party the right to be heard as required by section 91(8) of the same
Act. He submitted that the appellants were not accorded an opportunity to
be heard. He submitted that the appellants never received the notice written
to them of the Registrar’s intention to cancel their proprietorship, and that
they came to know about it when their Counsel Bwambale David stumbled
through it at the 1 st respondent’s office while checking for another client’s
letter. On inquiry the Secretary informed him that the letter had been sent to
the appellants’ registered postal address of P. O. Box No.746 Kampala and
that the title had already been cancelled. The letter of cancellation,
annexture B was then given to the appellants’ Counsel. Counsel submitted
that the said postal box number had ceased to operate and any notice to it is
accessed under special pardon from the post office officials. He submitted
that when the letter was eventually accessed, the stamp indicated that it
was on 29th July 2011 long after the title was cancelled. He argued that
much as the appellant’s were served with a letter to give a response, the
decision was made long before the letter was delivered which was in total
breach of the fundamentals of natural justice. He contended that such
decision was void ab initio, on the authority of Boniface Arinze Emmanuel
Onuoha & Anor V The Commissioner Aviation Police Entebbe [2006]
HCB 154.

The respondent on the other hand, submitted that section 91 of the Land
Act empowers the Registrar to take such steps as necessary to give effect to
the act, whether by endorsement or alteration or cancellation of certificate of
title, the issue of fresh certificates of title or otherwise without referring the
matter to court. He submitted that the appellants were given the opportunity
to be heard. He argued that the 2 nd respondent was copied a letter on 16 th
April 2010 written to the appellants, annexture A, requiring them to turn up
before the 1st respondent to have their side heard before the cancellation of
the title. He also submitted that the 2 nd respondent was given a letter from
the 1st respondent to the appellants informing them about the cancellation of
their title on 6 th June 2010. He contended that the appellants were given the
opportunity to be heard but they simply sat on their rights. He cited the case
of Mpungu & Sons Transporters Ltd V The Attorney General & Kembe
Coffee Factory (Coach) Ltd [2006] HCB 26 to support his position.
Heargued that the requirement of natural justice depends on the
circumstances of the case, nature of the inquiry, rules under which the
tribunal is acting, and subject matter dealt with. He argued that the 1 st
respondent acted diligently and with caution by posting the letter to the
appellants’ known address. He argued that the appellants’ claim of
abandoning the postal address was an afterthought as they never filed a
notice to that effect to the Registrar. The Registrar could not as a result
know that the appellants had abandoned their postal address.

Section 91(2) of the Land Act states as follows:-

“The registrar shall, where a certificate of title or instrument---

1. is issued in error;
2. contains a misdescription of land or boundaries;
3. contains an entry or endorsement made in error;
4. contains an illegal endorsement;
5. is illegally or wrongfully obtained; or
6. is illegally or wrongfully retained,

call for the duplicate certificate of title or instrumentfor cancellation, or

correction or delivery to the proper party.” (emphasis mine).

Sections 73, 74 and 75 of the Registration of Titles Act (RTA) together with
section 91 of the Land Act accord special powers to the Registrar of Titles. In
particular, sections 73 of the RTA and 90 of the Land Act empower the
Registrar of Titles to call in duplicate certificates of title for the purposes of,
among other things, rectifying or cancellation as the case requires. Section
91(8) & (9) of the Land Act requires the Registrar of Titles, while exercising
the said functions, to give due notice to the party likely to be affected by the
decision, to provide such party with an opportunity to be heard, to conduct
the hearing within the rules of natural justice, to give reasons for any
decision, and to communicate her decision in writing to the parties and the
Committee. The said Registrar is also bound to conduct a hearing in
accordance with the principles of natural justice and to communicate the
decision in writing to the affected parties before executing the decision
he/she may have reached. Section 91(3) of the Land Act provides that if the
person holding a certificate of title refuses to produce it to the registrar
within a reasonable time, the registrar shall dispense with the production of
it and amend the registry copy and where necessary issue a special
certificate of title to the lawful owner. Section 91(10) & (11) of the Land Act
provides for a right of appeal and a transfer is not to be effected until the
determination of the appeal.

In the instant case, it is clear that the Registrar of Titles was exercising the
statutory special powers accorded to him/her in cancelling the applicant
from the title in respect of land comprised in Mawokota Block 92 Plot 176. A
cursory examination of the affidavit evidence and the court record reveals
that the 1st respondent by a notice dated16 th April 2010 annexture A
informed the applicant of the intention to correct and amend the register by
cancelling his registration on the suit property. The same notice requested
the applicant to let the respondent know if there was any objection to the
proposed action. The letter was posted to the appellants’ last known postal
address. This was the address that was furnished during the transfer. The
appellants contended that the postal address through which the letter was
sent had long ceased to operate. However they did not show that this fact
was bought to the attention of the 1 st respondent, who could only post the
letter through the appellants’ last known postal address. This was the only
way he/she could have contacted the appellants. In my opinion, this exhibits
diligence on the part of the 1 st respondent in as far as serving the appellants
was concerned. This therefore would make ground 2 of this appeal to fail.

Section 91(3) of the Land Act provides that if the person holding a certificate
of title refuses to produce it to the registrar within a reasonable time, the
registrar shall dispense with the production of it and amend the registry
copy and where necessary issue a special certificate of title to the lawful
owner. Thus the Registrar’s going ahead to cancel the appellants’ names
from the title was presumably done under section 91(3) of the Land Act after
the appellants failed to respond to the notice. This was after exercising due
diligence and serving them through their last known address as stated
above.

In Mpungu & Sons Transporters Ltd V The Attorney General, supra,

court held that the requirement of natural justice depends on the
circumstances of the case, nature of the inquiry, rules under which the
tribunal is acting, and subject matter dealt with. In the given circumstances,
I would agree with the 2 nd respondent’s Counsel that the 1 st respondent acted
justly, fairly and diligently when she wrote to the appellants inviting them to
respond to the notice of intention to effect changes on the register in
connection with Mawokota Block 92 Plot 176 land at Mpami. In my opinion,
the Registrar’s act of sending the notice to their last known address amounts
to according them an opportunity to be heard. She had done all she could
within her powers to accord them the right to be heard. I would also agree
that when she went ahead to rectify the register after the appellants failed to
respond or turn up within reasonable time, she was acting within her
powers under section 91(3) of the Land Act. In this connection ground 1 of
the appeal would fail.

Ground 3: The Commissioner erred in law and fact by cancelling the

appellants’ proprietorship of land registered as Mawokota Block 92 Plot
176 basing on falsehoods and lies by the 2 nd respondent.

Ground 5: The Commissioner erred in law and fact by cancelling the

appellants’ proprietorship on the above land basing on non existent
documents or forged documents.

On the two grounds argued together, Counsel for the appellant submitted
that the letter written to the appellants annexture A stated that her office
had received a complaint from the administrators of the estate of the late
Yuliana Nakatude that the appellant’s mother had illegally transferred the
land to them in excess of what he bought; that the late Yuliana only sold two
acres; and that the appellants’ mother pleaded guilty at Buganda Chief
Magistrate’s Court to have transferred the land illegally. He submitted that
the statements in the letter were lies as evidenced by annexture D, E, F and
H. He submitted that as an administrator with quasi judicial powers, the
Registrar had a duty to evaluate the evidence before her before making a
decision. He contended that it is a duty of this court to evaluate the evidence
before it and come to its own conclusion while carefully weighing and
considering the judgment as held in Kifamunte V Uganda 1999/2 EA PG
127.

The respondents’ Counsel submitted in reply, relying on the 2 nd respondent’s

affidavit evidence, that the 2 nd respondent being administrators of the estate
of Yuliana Nakatudde were under duty to collect and administer the estate of
the deceased. In the course of gathering the deceased’s properties they
established that actually the deceased left a will naming the properties. It
was then discovered that only two acres were sold off to the appellants’
deceased father. On further inquiry by the 2 nd respondent from the 1 st
respondent, they discovered that the appellant had caused the transfer of
the whole land. The 2 nd respondent opened up a police case in Land Fraud
Division ref. E/159/2009 where it was established that the appellants had
through their mother fraudulently caused the transfer of the land into their
names. A criminal case no. 422/2009 was eventually instituted against the
appellants’ mother and a one Wabi Dan where the latter pleaded guilty and
was sentenced to eight months imprisonment. Wabi also implicated the co
accused as the master minder of the fraud but her case is still going on in
court. The 2nd respondent thus saw it fit to protect the deceased’s estate
hence why they lodged a complaint with the 1 st respondent who used her
powers under the Land Act to cancel the appellant’s entry.
It is clear from the record, particularly, annexture A that the Registrar had
received a complaint from the administrators of the estate of the late Yuliana
Nakatude that the appellant’s mother had illegally transferred the land to
them in excess of what he bought; that the late Yuliana only sold two acres;
and that the appellants’ mother pleaded guilty at Buganda Chief Magistrate’s
Court to have transferred the land illegally. The affidavit evidence of
Nakamya Sarah Rita an administratrix of the estate of the late Yuliana
Nakatudde is that the Registrar relied on the late Nakatudde’s will and its
English translation; a copy of an application for letters of administration for
the estate of Haji Abdullah Mpanga Kigozi; the record of proceedings in
Buganda Road Criminal Case no. 422/2009 U V Sarah Male Mpanga & Wabi
Dan; and a police report Case File ref. E/159/2009. The said documents
were annexed to the 2 nd respondent’s affidavit to this court as A, B, C, D,
and E respectively and this court had opportunity to peruse them in detail.
The appellants contended through their Counsel that the statements in the
letter were lies. The appellant’s Counsel attached annextures A,B, C, D, E,
F, and H to his written submissions to prove his point. However, he did not
show this court that the evidence availed by the 2 nd respondent to the
Registrar was rebutted before the said Registrar when she was sitting as an
administrator with quasi judicial powers.

As rightly observed by the appellants’ Counsel, the Registrar had a duty to

evaluate the evidence before her before making a decision. He also rightly
contended that it is a duty of this court to evaluate the evidence before it
and come to its own conclusion while carefully weighing and considering the
judgment as held in Kifamunte V Uganda, which he cited to court but did
not avail a copy. I have had opportunity to look at the documents that the
Registrar relied on to make her decision. I have also observed that at the
time the Registrar made the decision, the documents availed by the 2 nd
respondent were not rebutted by the appellants for reasons already
highlighted above. It is my opinion that in the circumstances under which
the Registrar made the decision, she, as a quasi judicial officer at the time,
fairly and judiciously evaluated the evidence before her before making a
decision. Grounds 3 and 5 of this appeal would therefore fail.

Ground 4: The Commissioner erred in law and fact by cancelling the

appellants’ proprietorship of the above described land over matters that
were being adjudicated upon in the courts of Judicature vide High
Court Civil Suit No. 98 of 2008

The appellant’s Counsel argued on this ground that the same matters
between the appellants and the respondents are a subject of litigation in civil
suit no. 98 of 2008 in the High Court of Uganda where the 2 nd respondent is
the plaintiff and the appellants are the defendants. He wondered why the 2 nd
respondent took the matter to a parallel tribunal which has no judicial
powers when such a matter ought to be adjudicated upon in a court of
competent jurisdiction. Counsel for the 2 nd respondent submitted in reply
that the appellants had illegally caused the transfer of the land into their
names and the Registrar exercised her powers under the Land Act to cancel
the entry. He submitted that the appellants’ contention of an ongoing suit is
misconceived and cannot bar the 1 st respondent from carrying out her duties
under the Land Act.

This court has already made a finding that the Registrarwas acting within
her powers under section 91 of the Land Act when she cancelled the
appellants’ proprietorship on the suit land. This court has not had
opportunity to look at the pleadings in civil suit no. 98 of 2008 in the High
Court of Uganda, since they were not part of the record, as to be able to
appreciate or ascertain whether the suit is misconceived. It would be
superfluous and speculative for this court to go into matters that are not
part of the record of this appeal. Ground 4 of the appeal therefore fails.
In the final result, I find that the appeal lacks merit. It is dismissed with
costs.

Dated at Kampala this 18 th day of October 2012.

Percy Night Tuhaise

JUDGE.

Yoweri Bamuhiga & 5 oers v Christine Mugarra & 2oers &Yoweri

Bamuhiga & 5oers v Frank Bagonza & 4 oers (Civil Suit No.68 Of 2006 &
Civil Suit No.78 Of 2006) ((Civil Suit No.68 Of 2006 & Civil Suit
No.78 Of 2006)) [2009] UGHC 110 (14 August 2009);

1. YOWERI BAMUHIGA}}
2. TINKASIMIRE JACKSON }}
3. KESI KABOONA}} ::::::::::::::::PLAINTIFFS
4. KWONKA MARTIN}}
5. ASIIMWE GIDEON }}
6. JACKSON KAGGWA}}
VERSUS
1.
CHRISTINE MUGARRA {(As administrators of the estate}}
2. MARTIN BAHINDUKA {of the late Mugarra
Kabagambe}}:::::::::DEFENDANTS
3. BUNDIBUGYO DISTRICT LAND BOARD }}
AND
CS No. 78 OF 2006
1.
YOWERI BAMUHIGA }}
2. TINKASIMIRE JACKSON }}
3. KESI KABOONA}} :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
PLAINTIFFS
4. KWONKA MARTIN}}
5. ASIIMWE GIDEON }}
6. JACKSON KAGGWA}}
VERSUS
1.
FRANK BAGONZA }}
2. MWAMBA DAVID }}
3. KYOMUHENDO KABAGAMBE }}:::::::::::::::::::::::::::::::::::::::
DEFENDANTS
4. KABAGAMBE YOFESU }}
5. BUNDIBUGYO DISTRICT LAND BOARD }}
BEFORE: - THE HONOURABLE MR. JUSTICE CHIGAMOY OWINY -
DOLLO
JUDGMENT
The Plaintiffs in the two suits herein have jointly and severally brought the
two actions against the Defendants jointly and severally. The 1st and 2nd
Defendants in the first suit have jointly been sued in their respective
capacity as the administratrix and administrator of the estate of the late
Mugarra Kabagambe, hitherto the Pt Defendant therein. The 3rd Defendant
in the first suit which is also 5th Defendant in the second suit (herein after
called the corporate Defendant) has been sued in its capacity as the
Bundibugyo District Land Board. The Plaintiffs plead with this Court, in
both suits, for the following declarations or orders; namely that:
(i) The Plaintiffs are the owners of the suit lands under customary tenure.
(ii) The Plaintiffs are entitled to possession and occupation of the suit lands.
(iii) The alienation of the suit lands to the other Defendants in both suits by
the corporate Defendant was wrongful, unlawful, illegal, null and void, and
of no legal effect.
(iv) A permanent injunction restraining the corporate Defendant from
alienating the suit lands to any other person except the Plaintiffs.
(v) A permanent injunction restraining the other Defendants in both suits
from trespassing onto the suit lands.
(vi) The Defendants pay general damages to the Plaintiffs.
(vii) The Defendants pay costs of the suit to the Plaintiffs.
The Defendants in both suits each denied the allegations contained in the
respective plaints; with the corporate Defendant contending that its
alienation of the suit lands to the other Defendants was lawful as it had
done so by virtue of the suit lands having vested in it by law; and the other
Defendants, for their part, contending that they had each acquired lease
proprietorship over their respective portions of the suit lands through lawful
allocation by the corporate Defendant herein.
At the commencement of the hearing of the first suit, the two suits were, at
the instance of the parties by consent, consolidated in accordance with the
provisions of O. 11, r. 1(a) of the Civil Procedure Rules; and heard together,
owing to the fact that the matters in controversy between the Plaintiffs and
the different Defendants therein involved the same questions of both facts
and law, hence could conveniently be disposed of at the same hearing.
Counsels for the respective parties then invited Court to take each of the
parties’ case as they were pleaded; and the following facts were agreed upon,
namely:
(a) The suit land was at one time gazetted a Controlled Hunting Area.
(b) The 1st and 2nd Defendants in the first suit, and the 2nd, 3rd, and 4th
Defendants in the second suit applied to the corporate Defendant for leases
of the suit lands.
(c) The applications for the aforesaid leases were successful.
(d) There are inspection reports regarding the suit lands (annexture ‘D’ to the
plaint in the second suit).
(e) The suit lands were surveyed.
(f) The Plaintiffs disputed the grant of the leases in the suit lands.
The issues framed for determination were as follows:
(i) Whether the Plaintiffs had any interest in the suit lands at the time the
Defendants applied for and obtained grants of the leases of the same.
(ii) Whether the corporate Defendant lawfully granted the leases contested
herein.
(iii) Whether the parties are entitled to any of the remedies prayed for.
In his written final submissions, Grace Mwebaze Ndibarema, learned
counsel for the corporate Defendant herein, raised a very important point of
law which he ought to have done so, as a preliminary point; namely that the
Plaintiffs had not served the said Defendant with the mandatory requisite
statutory written notice in accordance with section 2(1.) (c) of The Civil
Procedure and Limitation (Miscellaneous Provisions) Act, (Cap 72 Laws of
Uganda Revised Edn. 2000); and which provides that no suit can lie or be
instituted against a scheduled corporation until the expiration of 45 days
after service of such notice on such scheduled corporation.
Counsel referred me to a couple of authorities on the matter; namely
Rwakasoro vs. Attorney General [1982] H.C.B. 40; and Hajji Badru
Wegulo & 2 Ors vs. Attorney General, Kampala H.C. Misc. Applica. No.
85 of 1993, (1993) III KALR 53. He then submitted that breach of
this provision of the law is an illegality which on the authority of Makula
International vs. His Emminence Cardinal Nsubuga & Anor. [1982]
136, and Gulu Municipal Council vs. Nyeko Gabriel & Ors, (19961 HCB
66, cannot be sanctioned by this Court; and therefore even if the Court were
to find that the Plaintiffs were entitled to any of the remedies sought against
the said Defendant, they should be disallowed for the said reason.
While the point raised by learned Counsel is really a component of the last
issue framed by the parties for determination by this Court; it is my
considered persuasion that it be disposed of at the very outset, as I now
proceed to do, owing to the importance and the bearing it has on the entire
claim made by the Plaintiffs against the said Defendant. I fully concur with
learned counsel on the point of law he has raised; and the consequences
that result from commencing any action without compliance with the clear
mandatory provisions of the law.
The corporate Defendant herein, being a District Land Board, is a scheduled
corporation by virtue of the provisions of the Third Schedule to the Act; and
accordingly any suit brought against it without service of statutory notice, or
before the expiration of 45 days of service of such notice on it would be
untenable. That said, I must however express Court’s deprecation of the ill-
considered timing of the objection. Counsel ought to have taken the first
opportunity, and raised the objection as a preliminary point before, or at the
commencement of the hearing of the suits herein; upon which this Court
would have been under duty to first dispose of such objection.
In the event that the objection was upheld, the suits, as against the
corporate Defendant, would have been struck out without the Court having
to inquire into the merits; thereby saving both the time and resources which
Court has had to apply in the determination of the matters in controversy
between the Plaintiffs and the corporate Defendant. Be it as it may, in both
the original and the amended plaints, the Plaintiffs pleaded service of the
statutory notice on the corporate Defendant. This was denied by the
corporate Defendant in its defence pleadings made in response to the said
plaints; and consequently the Plaintiffs were under duty to prove that indeed
such service of statutory notice as they had pleaded had been effected on the
Defendant.
True, there is no copy of the aforesaid statutory notice on record. The record
reveals that M/s Ngaruye Ruhindi, Spencer & Co. Advocates took up the
conduct of this suit on behalf of the Plaintiffs at a much later stage from
M/s Mwesigye, Mugisha & Co. Advocates the counsels who had hitherto filed
the suits and conducted the matter on behalf of the Plaintiffs. I would
therefore not be surprised if M/s Ngaruye Ruhindi, Spencer & Co. Advocates
themselves may not be in possession of a copy of such statutory notice;
unless the previous counsels had the grace to pass the same on to them.
In any case while the Act sets out the form and substance the statutory
notice must take and have respectively, it is not a requirement that such
notice is appended to the plaint. The Act only states in section 2 (2) that: ‘...
every plaint subsequently filed shall contain a statement that such notice has
been delivered or left in accordance with the provisions of this section.’
Nonetheless, the Court record also contains a supplementary affidavit
previously sworn by one Tinkasimire Jackson - evidently the 2 Plaintiff in
both suits herein - in Miscellaneous Application No. 156 of 2006 of this
Court.
This was a failed application the Plaintiffs herein had brought for
representative action with respect to Civil Suit No. 68 of 2006 herein; and to
that affidavit there is attached among the clusters of annextures marked ‘B’
a letter dated the 3rd of January 2007, from one Byamungu Elias the Chief
Administrative Officer of Bundibugyo District, addressed to the said previous
counsels for the plaintiffs. The letter is referenced: ‘STATUTORY NOTICE OF
INTENDED SUIT’; and therein the said Chief Administrative Officer
acknowledges receipt of the notice of intended suit by five Plaintiffs seeking
prerogative orders of certiorari from the High Court; and further, in so far as
it is relevant to the issue before this Court, he stated as follows:
“We thank you for the notice. When I saw the notice in November 2006 when I
had just assumed this office I started on comprehensive study of the problem
to guide the authorities on the relevant facts on the ground.
In this case, we have met all the parties and agreed on a joint field work to
verify all the lands applied for in the degazetted Semliki Flats Controlled
Hunting Area. This will take place on Friday 12t January and Saturday 13th
January 2007.
For these reasons I am appealing to you to stay action and request Court to
pend the proceedings already programmed ...“
Further to this, when the Chairperson of the corporate Defendant, Jeremiah
Mutooro - DW1, was cross examined by Ngaruye Ruhindi counsel for the
Plaintiffs, in the proceedings that followed Court’s visit to the locus in quo,
he admitted that the corporate Defendant had indeed been served with the
statutory notice which the officials of the corporate Defendant had passed
over to its lawyer. In the circumstances then, the floundering belated
adverse contention by counsel for the corporate Defendant cannot be
upheld.
It is of no adverse effect to the Plaintiff’s case that the statutory notice
served on the corporate Defendant was with regard to an intended action for
judicial review of the administrative decision of the corporate Defendant.
What is important is that the subject matter of the complaint for which that
action was intended is precisely what has subsequently been brought to
Court by ordinary civil suits; and so are the, remedies sought in the
subsequent suits. I am therefore satisfied that the requisite mandatory
statutory notice was duly served on the said Defendant; and therefore find
that this objection is without merit. I accordingly overrule it.
On the first issue - whether the Plaintiffs had any interests in the suit lands
at the time the Defendants applied for and obtained grants of leases out of
the same - the parties hereto have presented contentious positions which are
quite adversarial and irreconcilable. The Plaintiffs have averred in their
pleadings and testified in Court that they had acquired and have been in
unchallenged possession of the suit lands under customary tenure long
before the contested lease grants; and that they have grazed their respective
herds of cattle in these lands throughout the period of their said possession,
and have several homesteads with cattle kraals in various locations in the
suit lands.
For their part, the Defendants pleaded in their written defences and testified
in Court that their proprietary rights over the suit lands were based on the
grants made to them by the corporate Defendant, in whom the lands had
vested as controlling authority, following the degazetting of the Controlled
Hunting Area which the suit lands had been part of. They denied that the
plaintiff S had prior to 2005 occupied the suit lands at all. Their case was
that there was no way the Plaintiffs could have occupied these suit lands
prior to the degazetting, as this was Government land under the control of
the Uganda Wildlife Authority, and its predecessor the Game Department.
It is clear from this controversy that the determination of the first issue
turns principally on what the legal status of Controlled Hunting Areas -
more specifically the Semliki Flats Controlled Hunting Area in which the suit
lands fall - was. If I establish that by law a controlled hunting area did not
permit human settlement, then first it would cast doubt on the veracity of
the Plaintiffs’ case that they had for decades enjoyed unchallenged
occupation and utilisation of the suit lands as owners thereof. If however the
converse is established, namely that human settlement was permitted; then,
what will remain for determination by this Court is whether in fact the
Plaintiffs were in possession by occupation and use of the suit lands as they
claim.
The Semliki Flats Controlled Hunting Area was created under Legal Notice
353 of 1963, namely Statutory Instrument No. 226-15: The Game (Semliki
Flats Hunting Area) Order, made under the provisions of sections 71 and 72
of The Game (Preservation and Control) Act (Cap. 226, Laws of Uganda -
1964 Edn.); now repealed, but with the statutory instruments made there
under saved. The two sections provided as follows:
“S. 71 (1) The Minister, by statutory order may, in any area of Uganda where
there is in his opinion danger of a serious diminution of any species of
scheduled animal or where it is in his opinion necessary or desirable to do so
in the interest of game management –
(a) prohibit the hunting of that species ...; or
(b) prescribe the maximum number of that species ... which may be hunted.
(2) Where an order has been made of the kind referred to in paragraph (b) of
sub section (1) of this section, the district commissioner of the area to which
the order relates may, ... issue to persons holding licenses to hunt animals of
the species to which the order relates, permits to hunt animals of that species
in that area.”
‘S. 72. (1) In any order of the kind referred to in paragraph (b) of subsection (1)
of section 71 of this Act, the Minister may prescribe a fee to be paid on the
issue of a permit of the kind mentioned in that section;
Provided that, in the case of permits issued to persons who are bona fide
residents of the district or area to which the permit relates-
(a) no fee shall be payable unless the government of the Federal State or the
administration of the District requests the Minister in writing to prescribe a
fee.
The Game (Semliki Flats Hunting Area) Order aforesaid spelt out, in the First
Schedule, the area covered by the Order; and prohibited the hunting of
certain species of animals specified in the Second Schedule to the Order,
and also restricted the hunting of certain animals that were specified in the
Third Schedule to the Order. In the First Schedule to the Order, the
boundary of the area covered by the said Order is described as passing
through the village of Rwebishengo. The village of Rwebishengo named
therein is now a small township.
The word ‘Controlled’ was neither used in the Act nor in the statutory
instrument aforesaid creating the hunting areas. It would appear that the
word was only later brought in, and used in common parlance in the
terminology of the hunting areas, for purpose of emphasising the intention of
the law. No wonder then that the interpretation section of the Act cited does
not contain a definition of the word ‘Controlled’; but does so for the word
‘hunt’.
It is also clear from the provisions of these two sections of the now repealed
Act, and the said Statutory Instrument made there under which the
repealing Act saved, that the Act and the Order did not concern themselves
with ownership, but rather the protection of the relevant named animal
species in issue in the area; hence the prescription on the manner of
hunting that could be carried out within the area declared as a Hunting
Area. A village like Rwebishengo through which the Hunting Area passed
was certainly a human settlement; and therefore could not, by any stretch of
definition, be said to have been set aside as an exclusive animal sanctuary
as was the case with game parks and game reserves.
This position is further made clear from the correspondences that emanated
from two top officials of the Uganda Wildlife Authority over the same subject
matter, at different times; and were admitted in. evidence by consent. In her
letter addressed to the Minister of State for Lands, dated 23rd September
2008, exhibited by consent and marked CE9, Ms Eunice Nyiramahoro Duli
the then Acting Director of Uganda Wildlife Authority attached a brief on the
legal status of Controlled Hunting Areas, exhibited and marked CE9 (e). In
so far as it is relevant to this suit, the brief stated as follows:
“Background
Over the past 60 years the former Game Department (GD) established a
number of ‘Controlled Hunting Areas’ (CHAs) in areas where it was felt that
certain species may be threatened by overhunting. In contrast to other areas
of the country, where there were no quotas, CHAs had strict hunting quotas
(or a complete hunting prohibition) for certain species. …. …….
At the time of establishment of the CHAs the rural population of Uganda was
still relatively low and pressures on land were much less than they are today.
CHAs were declared in areas where there were important wildlife populations,
regardless of whether there were people living in these areas or not. Other
than for the control of hunting, the CHAs did not provide for the control of
other activities detrimental to wildlife, such as settlement, agriculture or
pastoralism. Thus, other than the hunting of scheduled species, the Game
department had no control whatsoever over any form of land use in CHAs.
………
Legal status of CHA
Given that some CHAs still retained biodiversity of value, Section 92 (2) of the
Uganda Wildlife Statute provides for a 24 month period of coming into force of
the Act, in which UWA must decide ‘which controlled hunting areas shall be
declared as national parks, wildlife reserves, wildlife sanctuaries, community
wildlife areas or any other area [and which CHAs] shall cease to exist’
The review recommended sections of some Controlled Hunting Areas
specifically East Madi, West Madi and Kaiso Tonya CHAs to be declared
Wildlife reserves. Some were recommended for creation of Community Wildlife
Areas like parts of South Karamoja, North Karamoja and Semliki Flats CHAs.
The rest were recommended for degazettement. The proposals were presented
to Cabinet and thereafter to Parliament. Records of the Hansard indicate that
all proposals were accepted except the one of West Madi where the Lomunga
Wildlife Reserve had been proposed.
However according to the commissioner Wildlife, (who was in charge of
finalizing the gazetting and degazetting processes) when the process for
having Statutory Instruments made after the resolutions of Parliament, the
Solicitor General indicated that the process for degazetting CHAs was time
barred since the statutory 24 months had expired.”
In his letter dated the 12th March 2007, written to the Chief Administrative
Officer Bundibugyo District, exhibited by consent and marked CE1O (6), the
Executive Director of Uganda Wildlife Authority Moses Mapesa clarified
specifically on the legal status for Kanara and Rwebishengo Sub-Counties of
Ntoroko County, Bundibugyo District. The relevant parts of the letter read as
follows:
“Uganda Wildlife Authority undertook a review of its protected area and
developed a new Wildlife Protected Area System Plan specifically for ... the
Semliki Flats Controlled Hunting Area, the following changes were made: ...
The wetland area within the Semliki Flats Controlled Hunting Area (in
Rwebishengo sub county) was gazetted a community wildlife area to ensure
sustainable conservation of the wildlife species therein some of which are
threatened and endangered. These species include elephants, buffalos, kob,
waterbuck and the highly endangered shoebill stork.
The remaining part of the Semliki Flats Controlled Hunting area was
recommended for degazettement, which has not happened up to now. It still
remains a Controlled Hunting Area in law until such a time that the legal
instrument (Statutory Instrument No. 226-15 of 1964) that created it is
revoked. Controlled Hunting Areas at their time of creation were areas with
concentrations of wildlife on communally owned land where hunting licenses
and quotas were issued.”
To this was attached a copy of Statutory Instrument No. 57 dated 5
September 2003, exhibited by consent and marked CE1O (b) (2) under the
heading ‘The Uganda Wildlife (Declaration of Wildlife Conservation Area)
(Rwengara Community Wildlife Area) Instrument 2003’ which declared the
area which is described in the schedule thereto, namely: ‘All wetland areas
in Bundibugyo District along the shore of Lake Albert and along the Semliki
River’ to be a community wildlife area and a wildlife management area.
Sections 7 and 8 of the Uganda Wildlife Act (Cap. 200, Revised Edn. 2000)
provide as follows:
“7. A wildlife sanctuary declared under subsection (3) (a) shall be an area
which has been identified as being essential for the protection of a species of
wild animal or wild plant in which activities which are not going to be
destructive to the protected species or its habitat may be permitted.”
“8. A community wildlife area declared under subsection (3) (b) shall be an
area in which individuals who have property rights in land may carry out
activities for the sustainable management and utilisation of wildlife if the
activities do not adversely affect wildlife and in which area the State may
prescribe land use measures.”
Section 18 (3) of the Act, provides that a wildlife management area shall be
either a wildlife sanctuary, or a community wildlife area; and section 19 of
the Act provides as follows:
“(2). The purposes of a wildlife management area under section 18 (3) shall be
–
(a) to so manage and control the uses of land by the persons and communities
living in the area that it is possible for wildlife and those persons and
communities to coexist and for wildlife to be protected;
(b) to enable wildlife to have full protection in wildlife sanctuaries
notwithstanding the continued use of the land in the area by people and
communities ordinarily residing there;
(c) to facilitate the sustainable exploitation of wildlife resources by and for the
benefit of the people and communities living in the area;
(d) ……………….
(e) to carry out such of the purposes of a wildlife conservation area set out in
section 2 as are compatible with the continued residence of people and
communities in the wildlife management area and the purposes under
paragraphs (a) and (b) of this subsection.”
Clear evidence of the application of this law is in the fact that the
municipalities of Entebbe and Jinja, which are densely populated by human
settlement, are in fact gazetted as wildlife sanctuaries for the protection of
animals of all kinds, under the First and Second Schedules respectively, of
Statutory Instrument 200 - 11, The Uganda Wildlife (Declaration of Wildlife
Sanctuaries) Instrument made under sections 17 and 18 of The Uganda
Wildlife Act. Under section 3(a) of the Act a wild life sanctuary is a wildlife
management area which
15 under section 1 of the Act (the interpretation section), and sections 7 and
8 of the Act reproduced above is an area protected for the sustainable
management of wildlife there in; and in coexistence with human settlement.
It is abundantly clear that the common thread that runs throughout these
two Statutes and the subsidiary legislations made there under, and as well
the authoritative briefs from the two Executive Directors of the Wildlife
Authority, is that the law has always expressly recognised and permitted
human settlement in Controlled Hunting Areas and later other areas set
aside for the protection of specific species of animals; hence the suit lands
have at all times been available for human settlement irrespective of whether
they constituted parts of the Controlled Hunting Area under the old laws, or
were under the new legislations curved out and reclassified as Wildlife
Management Area going by either the name ‘wildlife sanctuary’ or
‘community wildlife area’.
The legislations were directed at the protection or management of wildlife;
not ownership of land by either of the two Governmental bodies: the Game
Department or its successor the Wi1dlif Authority. It was and is only human
settlement and land usage incompatible with the provisions protecting
wildlife, not the land occupation or usage per Se, which would bring such
occupiers and users of the lands in conflict with the law. The nearest that
the legislation went towards control of the land in issue is in the provision
for determination of the manner of land use by the inhabitants therein; and
all this was geared towards ensuring the protection of wildlife.
Consequently then, the communication by the Minister of State for Lands in
his letter to the Chairman of the District land Board Bundibugyo, dated 26th
September 2006 - exhibited in Court by consent and marked CE9 - in which
he states that the Semliki Flats Controlled Hunting Area had been de-
gazetted is ill informed, totally erroneous and a misrepresentation of the law
and fact regarding the process of degazetting of a Controlled Hunting Area,
and therefore misleading; may be, not surprisingly, because it did not
originate from the line Ministry responsible for the subject matter at hand;
and was unfortunately manifestly issued without adequate consultation.
The Parliamentary Hansard which the Honourable Minister relied on,
signifying Parliamentary resolution for the de-gazetting of the named
Controlled Hunting Areas and wildlife reserves, is not a legal instrument and
could not effect the degazetting. It is clear from the evidence on record that
the process of degazetting the Controlled Hunting Area by Ministerial
Statutory Instrument was a still birth due to its being overtaken by statutory
passage of time. My finding from the evidence reviewed above is that in fact
the Semliki Flats Controlled Hunting Area has, to date, not been de-gazetted.

I now turn to the second leg of the first issue: namely whether the Plaintiffs
were in fact in possession of the suit lands; and if so whether lawfully.
Yoweri Bamuhiga (PW1), in his testimony stated that he had acquired and
been in possession of his portion of the suit lands since colonial times; and
that Uganda’s attainment of independence found him already in occupation
thereof, meaning that by the time the leases were granted to the Defendants
herein, he had already occupied his several portions of the suit lands for well
over 40 years. He stated that when the area was declared a controlled
hunting area he was already in occupation of the land; and that the other
Plaintiffs followed him later.
The Plaintiffs all testified as to how they had acquired their portions of the
suit lands; and that it was either through alienation by first occupation in
accordance with Batuku customary practice, or by inheritance from their
parents. Further to this, my findings that Controlled Hunting Areas have
always expressly permitted human settlement therein, has partly answered
this issue. The Plaintiffs all testified that in the suit lands they each have
several homesteads, owing to the large number of cattle they each own. In
fact their evidence disclosed that they have, between themselves, cattle
numbering well over 8000 (eight thousand).
Their evidence was that except for occasional conflict with personnel of the
Game Department which was later resolved when they lodged complaints
with the relevant authorities, they had otherwise each enjoyed unchallenged
possession and usage, hence ownership of their respective portions of the
suit lands until 2005 when the Defendants were allocated these lands and
surveyed them off. The conflict the Plaintiffs had with the Came Department
is brought out by the letter of the Permanent Secretary, Ministry of Tourism
Trade and Industry dated 30th May 1997 and addressed to the Executive
Director Uganda Wildlife Authority.
This letter is exhibited by consent and marked CE1S; and in it the
Permanent Secretary explains that it was the unlawful occasional intrusion
into the adjacent game reserve by cattle grazing which was the source of
conflict between the cattle owners and the game rangers. For this reason I
must reject the testimony of DW8 the game ranger who despite his over-zeal
was evidently ignorant of the difference between the status of the game
reserve, which it was his duty to protect, and the Controlled Hunting Area
that lay adjacent to it; and for which he can be forgiven.
Apart from the evidence of the Plaintiffs, which I have carefully subjected to
evaluation, the Court visited the locus in quo. As pointed out, the Plaintiffs
have, between themselves, well over 8,000 head of cattle. There is also the
report made by the surveyor who acted on behalf of the Defendant allocatees
of the suit lands. In the document entitled ‘Job History’, exhibited in Court
and marked PE1, the surveyor who carried out the survey of the suit lands
sometime in 2005 as shown by the evidence, clearly pointed out as follows:
“... the land is overgrazed and very flat; you almost don’t need a road with
little cutting.”
In the course of the visit to the locus in quo which was quite elaborate and
exacting as it took Court the whole day - from 9.30 a.m. to 5.00 p.m. in the
field - to accomplish, it was evident that the vast lands in issue were
unmistakably highly overgrazed. Certainly, the overgrazing noticed by the
surveyor could not have resulted from cattle belonging to the Defendants
who had just got allocated the suit lands by the corporate Defendant. In any
case, from their own account, the Defendants’ cattle on the land then were
not more than 500 in number; and therefore could not have caused the
overgrazing of an area measuring some 5 (five) square miles of land - which
is what the area of the suit lands is - and more, in such a short period of
time between the contested allocations and the survey in 2005.
During that Court visit, and in their evidence in the proceedings thereat, the
Plaintiffs pointed out several old homesteads they claimed belonged to them;
and a number of survey mark stones planted on what they claimed were
their lands. The Court was able to see, first hand, evidence of long duration
of occupation and land use exceeding 10 year period; and DW1 the
Chairperson of the corporate Defendant conceded this point in evidence
following this visit. The Court saw in the suit lands structures which
Christine Mugarra pointed out as hers; one of which was newly put up and
made of mud and wattle and roofed with corrugated iron sheets. She
explained that the old structure that stood thereon had collapsed, and the
new structure was a replacement.
From her homestead Christine Mugarra led Court in a south easterly
direction, towards the game reserve; generally tracing the western borderline
of the suit land that had been leased to her, up to a point where she stated a
mark stone had been planted but had been removed. This marked her
southern-most border point; and from which the land lay in an easterly
direction. Within this land leased to Christine Mugarra, the Plaintiffs showed
Court homesteads belonging to Yoweri Bamuhiga, Martin Kwonka,
Tinkasimire Jackson, and other persons who are not parties to the suit,
such as Asiimwe Robert. Court also came across a number of smaller
homesteads whose occupants identified themselves as herdsmen for Yoweri
Bamuhiga.
The Court found at the homestead of Jackson Tinkasimire situated within
the leased land, a freshly built mud and wattle structure roofed with old iron
sheets. His explanation was that an old grass thatched structure therein had
collapsed and the fresh structure was a replacement. There was however
evidence of occupation, in the form of a kraal much older than this recent
structure, albeit not to the size and age of that of Yoweri Bamuhiga, Kesi
Kabona, and Martin Kwonka. Given that Christine Mugarra herself had
reconstructed an older one which had collapsed, Court could not discern
any mischief in the freshly constructed structure by Jackson Tinkasimire.
Three Plaintiffs showed Court homesteads outside this borderline. To the
west of the borderline Asiimwe Gideon showed Court two evidently old
homesteads; one of which he stated was his, and the other his father
Kaahwa Charles’. His evidence was that while these homes were outside the
land leased to Christine Mugarra, his and his father’s lands extended
eastwards up to Yoweri Bamuhiga - PW1’s land; and was enclosed within the
land leased to Christine Mugarra. To the south west, south, and south east
of Christine Mugarra’s southern borderline, Court was shown homesteads
belonging to Joshua Mwesige, Kesi Kabona, Jackson Kaggwa, and Martin
Kwonka.
The evidence adduced by these Plaintiffs was that while the said homesteads
stood outside the land leased to Christine Mugarra, the respective owners’
lands extended northwards and fell within the land leased to Christine
Mugarra; and southwards towards the game reserve. I must point out that
the homesteads shown to Court as being those of Yoweri Bamuhiga, Kesi
Kabona, and Martin Kwonka respectively were remarkably old and big
homesteads. Each homestead was characterised by a large old kraal in
which the most striking and enduring tell-tale manifestation of long
occupation was the creeping oruchwamba grass which in the Luo language
is called motto; and which the parties all agreed invariably thrives in cattle
kraals.
Court then proceeded to the east and was shown a collapsed grass thatched
community prayer house; beyond which there were homesteads of Kesi
Kabona, and Martin Kwonka with large kraals and the trade mark
oruchwamba grass; with a mark stone reportedly at a point just a few meters
only from Martin Kwonka’s home; but the stone had been removed. Further
east still, and this was now in Rwenyana, Rwangara parish, Kanara sub
county, Court was shown old homesteads and kraals belonging to Yoweri
Bamuhiga, Jackson Tinkasimire, and Kesi Kabona; with a mark stone close
by Yoweri Bamuhiga’s old homestead. The mark stones that were identified,
and were still in place, and shown to Court, bore the following marks:
DD2092, and DD2109.
The Defendants who, save for Christine Mugarra, did not show Court any
evidence of their homesteads, instead claiming that these had been
destroyed, contended that the homesteads the Plaintiffs had shown to Court
belonged to Congolese refugees who had been resettled in the area by the
local authorities following their flight from the conflict in their country.
Indeed Court found a couple of Congolese homesteads in the suit land, but
as was confirmed by DW1 and DW5 in their evidence in the locus in quo
proceedings, Bodwe - a Congolese found in the suit land - clarified that it
was Yoweri Bamuhiga who had resettled him, in the year 2000, on the land
where Court found him.
Further to this PW6, the Chairperson LC3 of Rwebishengo Sub - County
testified that they had resettled the Congolese refugees with consent of the
local residents of the area. If indeed the contention by the Defendants that
human settlement in the suit land was barred owing to its status as a
Controlled Hunting Area were to stand, then the local authorities could not
have resettled Congolese refugees on it. In the course of the proceedings that
followed the visit to the locus in quo, both DW1 the Chairperson of the
corporate Defendant, and DW4 Christine Mugarra who stated that she had
not seen the house before that day, conceded that the homestead of PW1
shown in Kimara village was a very old structure.
The weight of evidence is therefore heavily against the contention by the
Defendants that the Plaintiffs were not in occupation of the suit lands before
the inspection in 2005. Concession by DW1 and DW4 that the house of PW1
seen on the land leased to DW4 was a very old one settles the matter. I am
fully satisfied, from the evidence on record and my own observation at the
locus, that indeed the Plaintiffs have established that their occupancy of the
suit lands commenced long before the lands were allocated to the
Defendants by the corporate Defendant; and thereby I resolve the first issue
in the affirmative.
With regard to the second issue - whether the corporate Defendant had
lawfully leased the suit lands to the Defendants - it has been the ca for all
the Defendants in their respective pleadings and evidence that the corporate
Defendant herein lawfully allocated the suit lands to the other Defendants
by reason of the lands having vested in it after being de-gazetted from its
former status as a Controlled Hunting Area.
I need to reiterate here that owing to my finding herein above on the status
of a Controlled Hunting Area, any part of the Semliki Flats Controlled
Hunting Area not occupied, or claimed by any person or authority, whether
or not it has been de-gazetted, clearly vests in the corporate Defendant; and
it would perfectly be in order for the corporate Defendant to alienate it to
anyone by grant of an estate in leasehold or freehold.
The corporate Defendant as a District Land Board is a creature of Article 240
of the 1995 Constitution of Uganda, and The Land Act (Cap. 227 Revised
Edn. 2000). Article 240 of the Constitution has established District Land
Boards as corporate entities, independent of the Uganda Land Commission
in which, hitherto, all public land in Uganda was vested. Article 241 of the
Constitution sets out the functions of the District Land Boards as follows: -
“(1) The functions of a district land board are –
(a) to hold and allocate land in the district which is not owned by any person
or authority;
(b) to facilitate the registration and transfer of interests in land; and
(c) to deal with all other matters connected with land in the district in
accordance with laws made by Parliament.”

Section 59 (1) of The Land Act, (Cap. 227 Laws of Uganda Revised Edn.
2000) has replicated the first two functions assigned to the District Land
Boards by the Constitution. Section 60 (1) of the Act provides that in the
performance of its function a District Land Board shall take into account,
inter alia, the particular circumstances of different systems of customary
land tenure within the district. Article 237 of the Constitution of Uganda
1995, provides that land in Uganda belongs to the citizens of Uganda and
shall vest in them in accordance with the land tenure systems provided for
in the Constitution.
Among the land tenure systems recognised in Article 237 (3) of the
Constitution, is customary land holding. Whereas hitherto customary
occupants of public land were mere tenants on such lands and were
relatively in a precariously insecure position vis-a-vis any person who
wished to lease and better develop these lands, the land mark revolution
ushered in by the Constitution of Uganda 1995, was the transformation of
customary land tenure by elevating it to the same status, and with equal
protection and security, as the mailo and freehold land tenures.
The Land Act restated the transformation of the Plaintiffs from being
vulnerable customary tenants on public land - which they had been under
the provisions of the 1967 Constitution and the Public Lands Act 1969 - and
elevated them to private customary owners of the same land; and in
perpetuity. The evidence adduced by the Plaintiffs is that they held the suit
lands under Batuku customary land holding practice; having acquired
proprietary rights therein by adverse possession, with traditionally known
and recognised natural features marking their respective boundaries.
Therefore the corporate Defendant could not at all lawfully alienate these
lands to the detriment of the Plaintiffs; just as it could never at all alienate
land held in freehold or leasehold to the detriment of such land holder. The
Land Act makes this point very clear by providing in section 3 (1), in so far
as it is relevant to the case before me, as follows:
“(1) Customary tenure is a form of tenure-
(a) applicable to a specific area of land and a specific description or class of
persons;
(b) subject to section 27, governed by rules generally accepted as binding and
authoritative by the class of persons to which it applies;
(c) applicable to any persons acquiring land in that area in accordance with
those rules;
(d) subject to section 27, characterised by local customary regulation;
……………..
(h) which is owned in perpetuity.”

In this regard, customary land tenure is a matter of evidence; and is by no

means uniform. Each community has its mode of customary land claim of
ownership. In some communities, the entire customary tenure may be on
private land holding; whereas in others, private customary land holding may
be interspersed with public or communal customary land holding, as is quite
common amongst the Acholi.
Section 23 (3) of the Land Act recognises that land may be set aside for
common use for purposes of, inter alia, grazing and watering of livestock,
hunting, and such other purposes as the tradition among the community
using the land communally may prescribe. Section 64 of the Act, as
amended by section 27 of The Land (Amendment) Act, 2004, provides that a
District Council may, in its discretion, establish a Land Committee at any
Sub County.
The said amended section 64 (7) of the Act provides as follows with regard to
the Sub-County Land Committee:
“(7) A Committee shall assist the Board in an advisory capacity on matters
relating to land including ascertaining rights in land and shall perform any
other functions conferred on it by this Act or any other law.”
In the course of these proceedings, certain matters of grave concern came
out in evidence which it is the duty of this Court to address itself to. This is
with regard to the manner the corporate Defendant and certain of its officials
conducted themselves in the performance of official functions and duties.
Regulation 23 of The Land Regulations 2004, which was already in force at
the time when the suit lands were allocated to the Defendants herein clearly
lays down the procedure the Uganda Land Commission and the District
Land Boards have to follow in the process of their allocation of land, as
follows:
“23. (1) A person may apply to a board or the commission to be allocated land
–
(a) in the case of a board, land in the district which is not owned by anybody;
(b) in the case of the commission, land held by it.

(2) On receipt of an application referred to in sub-regulation (1), the board or

the commission may –
(a) advertise the application by giving notice of at least twenty one days in a
newspaper with wide circulation in the district and by such other means as
are likely to draw the matter to the attention of persons likely to be affected by
the application within the district;
(b) invite any person to comment on or object to the application, giving reasons
for any comment or objection;
(c) determine, after taking into account any comments or objections that may
be made, in a meeting at which members of the public may be present,
whether the applicant should be allocated the land for which application is
made.”
Almost everything that the corporate Defendant did in the process of
granting the disputed allocations was in utter non compliance with the law.
Regulation 16 provides that an application for a lease, in case of land held
by a District Land Board, shall be in Form 8 in the First Schedule to the
Regulations. That Form provides that the applicant fills it by entering his or
her or its name, and signing it; and enters the date of the application.
However the application by the late Hon Mugarra Francis exhibited by
consent and marked CE1 (a) derogated from this mandatory requirement in
that the applicant did not sign the form.
Jeremiah Mutooro the Chairperson of the corporate Defendant himself
conceded when it was pointed out to him that this was an incurably
defective anomaly. The most irresponsible procedural anomaly was in the
corporate Defendant’s conduct of the purported inspection of the lands
applied for by the Defendants. The corporate Defendant exercised no caution
at all. It left it to the applicants to orally notify the local authorities of the
then impending inspection.
Common sense should have dictated and sounded a warning note to the
officials of the corporate Defendant that an applicant who was bent on
acquiring land by improper means would ensure that any person with an
adverse claim over the land was kept in the dark about the visit of the
granting authority whose decision would otherwise be negatively swayed by
any objection to such an application. It was therefore not surprising that
they neither found any official of the Rwebishengo Sub County in office on
the material day, nor any LC official at the suit lands when they went for
their purported inspection.
I do believe that the officials of the corporate Defendant indeed went to the
suit lands as they testified in evidence. On finding no local officials or any
other person on the lands for inspection, they should have called off the
exercise. However looking at the entire manner of their conduct of official
business, I am inclined to think, and I would not be surprised, that it was
more of a perfunctory visit to justify an otherwise foregone conclusion -
namely grant of the inspected lands to the Defendants - than to seriously
carry out their mandated statutory functions.
As was pointed out by PW6, the LCIII Chairperson Rwebishengo Sub County
who has been in that chair since 1985, the practice had always been that his
office was notified by the Land Board whenever it was coming to inspect land
applied for, and the office would mobilise the people of the affected area; but
that with regard to the suit lands there was no such communication to his
office or to the LC5 of the area at all. PW1 Yoweri Bamuhiga in cross
examination by counsel for the corporate Defendant, reiterated the existence
of this practice; and named one Zerali in respect of whose application for
land the local authority upon notification by the District Land Board had
effectively mobilised the people of the area accordingly.
In the instant case, the officials of the corporate Defendant in failing to
adhere to this time honoured practice the local population were aware of and
which had served them well, pathetically conducted themselves very much
like pre-colonial African Chiefs who did not have the benefit of literacy, and
therefore relied on oral relay of official communication. But even those
African Chiefs knew the importance of effective communication of official
business, and did better by relying on established official channels for such
official communication.
No wonder then, following the revelation of the several old homesteads in the
suit lands during the visit to the locus in quo, DW1 the Chairperson of the
corporate Defendant conceded in his testimony that his inspection exercise
had not been as elaborate as the Court’s visit to the locus had been; and
therefore he had not been shown these homesteads during the inspection;
and that if he had seen them, and the Plaintiffs’ objections had been brought
to the corporate Defendant’s attention at that time, there was no way that
the suit lands would have been allocated to the Defendants.
Owing to the fact that land in the district not claimed by any one vests in it,
the District Land Board is in a fiduciary position regarding land users in the
respective district; and because of this, it is of the utmost importance that
its officials adhere to the laws and regulations pertaining to their official
functions, and bear in mind at all times the interests of such land users.
Had the corporate Defendant cared to advertise the applications as provided
for in the Regulations cited above, even merely by notifying the local
authorities of Rwebisengo and Kanara Sub Counties in writing, it would
certainly have been spared the instant suits which have otherwise resulted.
In this regard the decision of the Court of Appeal in Venansio Bamweyaka
& 5 Others vs. Kampala District Land Board & Another - Civ. Appeal
No. 20 of 2002 is pertinent. In that case, Okello J.A. held that where the
application for, and the alienation of the land by the controlling authority
has been done without consultation of those in occupation thereof such
grant would not be allowed to stand. There the Court was interpreting the
import of regulation 22 of the Land Regulations 2001 (Statutory Instrument
No. 16 of 2001) which was worded in textually the same language as
regulation 23 of the Land Regulations 2004 reproduced herein above; and
which replaced it.
The import of this decision of the Court of Appeal is that although the
regulations about consultation are couched in language which suggests the
Land Boards have discretion over the matter, the Land Boards are in fact
duty bound to treat it as mandatory. To do otherwise would, as has
manifested itself in the instant case, deny any potential objector the right to
be heard; and this is a breach of the cardinal rule of natural justice
prescribing the right of anyone, on whom a decision may impact, to be heard
before such decision is made.
The District Land Boards are therefore under strict duty to treat all
applications with utmost circumspection; and avert any possible mischief by
notifying the public in the area the land applied for is situated, of such
application. Further to this the Court restated the position of the law that
where land is occupied under customary tenure, the District Land Board has
no authority whatever to alienate it to any person or authority; as it can only
allocate land not owned or claimed by any person or authority.
I have already found that the suit lands were effectively occupied by the
Plaintiffs. Accordingly, the Bundibugyo District Land Board could not
lawfully alienate the same to any other person. The only role the corporate
Defendant could have performed therewith was either to convert the
customary holdings into freeholds if the Plaintiffs so wished, or to grant
them certificates of customary ownerships as prescribed by the law.
There are yet other matters of grave concern in the process of the acquisition
of the suit lands by the Defendants. It came out in evidence that David
Mwamba a member of the corporate Defendant then, and Frank Bagonza the
Secretary to the corporate Defendant had lease documents showing the land
they had jointly acquired was 700 hectares (1,720 acres) and not the 1000
acres they had been jointly allocated, and had paid for. Bagonza signed the
lease document both for the corporate Defendant and for himself. The
chairperson of the corporate Defendant was shocked to learn in Court that
this was so, as the information in the lease offer was not from the corporate
Defendant; and the lease offer was made before any survey had been carried
out.
The litany of evidently fraudulent process did not stop there. With regard to
Frank Bagonza’s land he had entered information in the inspection report
that he had cattle on the land and yet he confessed in Court that this was
not so; and so was the information about the semi permanent building on
the land which in fact was non-existent. Gideon Kabagambe and Yofesi
Kabagambe each processed a lease twice the size of the land that they had
been allocated. The two had been allocated 250 acres, but the print for their
lease now read 202.80 hectares (500.9 acres).
Gideon Kabagambe had given information which appeared in the inspection
report that the cattle on his land belonged to Congolese, and yet in Court he
stated that the cattle belonged to Hon. Mugarra. These fraudulent parties
sought to persuade Court that these were errors or later developments which
could be rectified to reflect the earlier allocation. The officials of the
corporate Defendant themselves either participated in the fraud or tacitly
promoted it by their laxity and blameworthy manner of carrying out official
duties. The counsels for the Defendants have argued in their final
submissions that these malfeasances can be rectified and made good. I think
otherwise.
These instances of blatant fraud and others that have come out in evidence
say a lot about the Defendants. There could never be any better instance of
fraud in the circumstance. They are a pack of untrustworthy greedy land
grabbers whose denial of the fact of the Plaintiffs’ occupation of the suit
lands has been deliberate falsehood which they perpetrated even during
their Court appearances; and was designed for the singular purpose of
taking advantage of the Plaintiffs’ ignorance and vulnerability. I certainly
condemn their several and collective actions in the strongest term possible;
and therefore answer the second issue in the negative.
With regard to the last issue - the remedies available to the parties - the
applicants all stated in the respective forms that the land they were applying
for had no occupants or neighbours except themselves; yet in their pleadings
they all contended that the area the suit lands fell within had been a
Controlled Hunting Area which had not permitted human settlement and
they acquired their rights thereto as allocatees of the corporate Defendant.
There were only two ways the Defendants could have acquired proprietary
rights over the suit lands: either as customary occupants or as lessees of the
corporate Defendant. If they had been customary occupants they would have
applied for conversion of their customary interests into freeholds and not
leaseholds.
Therefore owing to the fact that their pleadings were clear that they had
acquired the suit lands through applying for the leases from the corporate
Defendant, they cannot escape from their own case. I reject each of their
evidence that prior to their tendering their applications for, and inspection of
the suit lands they were already in possession, as a pack of lies. It is trite
law that a party is bound by his, her, or its pleadings; and any departure
there from without prior or consequential amendment is unacceptable and
treated as amounting to deliberate falsehood.
There is a host of authorities on this; see Candy vs. Caspair Air Charter
Ltd. (1956) E.A.C.A. 139; Akisoferi W. Biteremo vs. Damscus Munyanda
Situma S.C. Civ. Appeal No. 15 of 1991; Interfreight Forwarders (U)
Ltd. vs. East African Development Bank S.C. Civ. Appeal No. 33 of
1992, (1994 - 951 H.C.B. 54; Goustar Enterprises Ltd. vs. John Kokas
Oumo S.C. Civ. Appeal No. 8 of 2003; Kasifa Namusisi & Others vs.
Francis M.K. Ntabazi S.C. Civ. Appeal No. 4 of 2005, among many
others.
I do not see any remedy that can be availed to the Defendants at all. Instead
I allow both suits with costs to the Plaintiffs. The Plaintiffs have pleaded with
this Court for inter alia general damages of U shs. 15m/= each owing to the
stress they have suffered due to the culpable deeds of the Defendants. I take
cognisance of the fact that the Plaintiffs were never at any time denied the
use of the suit lands. The threat largely remained on paper and they were
able to nip it at the bud. I consider that in the circumstance an award of U
shs 3m/= to each of the Plaintiffs is reasonable atonement for the damages
suffered.
In the result, I make the following declarations and orders:
(i) The Plaintiffs are the customary owners of the suit lands and are entitled
to quiet possession thereof.
(ii) The alienation of the suit lands to the Defendants in both suits by the
corporate Defendant and the processes that ensued there from are hereby all
nullified for being unlawful, wrongful, and or fraudulent.
(iii) The Defendants are all ordered to give vacant possession of the suit
lands to the Plaintiffs.
(iv) An order of permanent injunction hereby issues restraining the corporate
Defendant and the other Defendants from meddling in, or in any way
interfering with the proprietary interests of the Plaintiffs in the suit lands.
(v) The Plaintiffs are each awarded general damages in the sum of U. shs.
3,000,000/= (Three million only).
(vi) The Defendants shall pay the costs of the suit.
Before taking leave of this matter, I must address the plea raised by counsel
for the Plaintiffs for a certificate for two counsels. Indeed the law provides for
such certificate in deserving cases. My understanding of such provision is
that the Court must be satisfied that the matter before it was of such
complexity that it required the services of two counsels for its conduct; and
that in fact two counsels participated in the conduct of such matter. I am
afraid I have not been able to see any complexity in the instant case. Owing
to the consolidation of the two suits it could have appeared exacting; but the
truth of the matter is that every process in the conduct of the suit catered
for both suits simultaneously.
Further to this I did not see the participation of two counsels for the
Plaintiffs. Participation is not measured by mere presence at the bar in
Court, but by actual involvement that goes beyond merely helping to carry
files to Court. The rules regulating the remuneration of advocates provides,
in the alternative or in addition, for agreement - as between counsel and
client - for such higher remuneration than what is provided for in the Sixth
Schedule to the Rules as they may negotiate and agree upon. This seems to
be the avenue the counsel for the Plaintiffs could have pursued. I therefore
disallow the prayer for certificate for two counsels as not deserving in the
instant case.

Chigamoy Owiny - Dollo

RESIDENT JUDGE, FORT PORTAL

Wamono v Equity Bank Uganda Ltd & Anor (MA No. 600 Of 2012) [2013]
UGCOMMC 98 (27 May 2013);

(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO 600 OF 2012

WAMONO SHEM}........................................................................
APPLICANT

VS

1. EQUITY BANK UGANDA LTD}

2. CONSTANCE WAKYEMBA}...............................................
RESPONDENTS

BEFORE HON JUSTICE CHRISTOPHER MADRAMA IZAMA

JUDGMENT

The Applicant's application/the suit was filed under sections 33, 34, 35 and
36 (1) of the Mortgage Act, Act 8 of 2009, order 52 rules 1 and 3 of the Civil
Procedure Rules by originating summons. It is for orders that the applicant
be heard in an application for orders that this honourable court reviews the
mortgage by declaring the same void; that the recovery process under the
mortgage is declared void; and costs of the application are provided for.

The grounds of the application are contained in the affidavit of the applicant
and are also summarised in the notice of motion. The grounds are that
firstly the mortgage was obtained in an unlawful manner in as much as the
security is family land and there was no spousal consent to mortgage the
property. Secondly the recovery process of the loan is unlawful inasmuch as
section 19 of the Mortgage Act had not been complied with. Finally that it is
just and fitting that the application is allowed. In the affidavit in support of
the application the applicant avers that the second respondent is his wife
pursuant to customary marriage celebrated on 30th day of January 2006.
The applicant lists five children of the marriage. He avers the 2 nd respondent
had agreed that all property acquired by the family was family property for
the social and financial security of the family. The property the subject
matter of the application was specifically used to provide for family income
to cater for school fees of their children. He was shocked to learn that the
property was the subject of a mortgage when he got notice through the new
vision advertisement of 23rd of August 2012 showing that the property was
to be sold. He avers that he did not consent to the family property being
pledged with the first respondent as security by the second respondent. The
respondents did not at any one time inform him of their dealing in the
property. The deponent avers that he had all along been trying to obtain the
mortgage instruments to establish what actually occurred. He established
that there was no spousal consent and there was no evidence of any enquiry
by the first respondent as to whether the property was family property or
not. He further learnt that the notice of default was not a notice at law
because the statutory period had not elapsed. The security documents
revealed that there were specific conditions to be complied with by the first
respondent before the disbursement of the loan, which conditions were not
complied with.

The affidavit in reply of the first respondent bank is sworn by Ms Mulalazi

Joweria, a Legal Officer in Equity Bank. She first of all contends on the
advice of her lawyers that the application is incompetent and bad in law. The
ground of the alleged incompetence is the assertion that in the
circumstances the court has no jurisdiction to review the mortgage
agreement executed between the parties in the absence of fraud or illegality.
Furthermore the first respondent was never favoured with sufficient proof of
the marriage between her and the applicant. The respondent carried out a
due diligence study in which it put to task the respondent to provide a
statutory declaration as proof of her marital status. The evidence shows that
she was unmarried at the time of execution of the mortgage.
She further avers that AM (U) Ltd referred to as the principal debtor applied
for and was offered a loan facility of Uganda shillings 100,000,000/= by the
first respondent. The second respondent donated powers of attorney to the
principal debtor, to pledge the suit property as security for a loan from the
first respondent. The loan facility was secured by a mortgage of property
comprised in Kibuga block 29 plot 1682 land at Kanjokya registered in the
second respondents names and the mortgage deed was executed between the
second respondent (mortgagor) and A.M. (U) Ltd (the principal debtor) on the
one hand and the first respondent. The first respondent carried out the
requisite due diligence and investigated whether the second respondent was
at the material time married or not. The second respondent was not married
at the time the mortgage deed was executed and swore a statutory
declaration to that effect. The second respondent further gave her approval
and consent to the first respondent to appoint a receiver to enter into
possession, collect by demand or action all the income or arrears and to
exercise its powers of sale under the mortgage by private treaty in respect of
the suit property. In breach of the terms of the mortgage deed between the
parties, the principal debtor or the second respondent did not service the
loan as the instalments fell due as a result of which the first respondent
demanded full payment of the amounts outstanding on the loan. Notice of
default was duly served upon the principal debtor and the second
respondent notifying them of the default and demanding that they pay the
outstanding amount of Uganda shillings 104,603,912/=. After expiry of the
notice of default, a notice of sale was served upon the principal debtor and
the second respondent notifying them of the intended sale of the suit
property. The property was advertised for sale in the New Vision paper of
23rd of August 2012. Consequently the deponent avers that the applicant’s
application does not warrant any remedies/orders sought and lacks any
merit.
The second respondent on the other hand filed an affidavit in reply in which
she avers that she was still married to the applicant under a customary
marriage regime contracted on 30 January 2006 at the time she obtained a
credit facility from the first respondent. That the property the subject of the
application is indeed family property she mortgaged without the consent of
her husband.

The applicant was represented by Messieurs Kawenja, Othieno and Company

Advocates and the first respondent represented by Kigozi Sempala Mukasa
Obonyo Advocates [KSMO] and Counsels addressed the Court in written
submissions.

In support of the application the written submissions of the applicant is that

the mortgage was obtained in an unlawful manner in as much as the
security involved is family land and there was no spousal consent to
mortgage it. The applicant is married to the second respondent with whom
he shared family property. The applicant and the second respondent agreed
to treat the mortgaged property as family land as provided for under section
38 A (4) (c) of the Land (Amendment Act) Act 2004. Counsel submitted that
under article 31 of the Constitution partners in marriage have equal rights
which extend to rights over property. Counsel relied on the judgement of the
Court of Appeal Twonomugisha JA in Julius Rwabinumi vs. Hope
Bahimbisombwe CACA number 30 of 2007 for the proposition that a
matrimonial property is joint property as between a husband and wife and
should be shared equally on divorce. The fact that it is registered in the
names of the wife or the husband is not relevant because it belongs to both.
Consequently it is deemed that the property is part of the family land and
jointly owned.

The crux of the applicant’s case is that the second respondent did not obtain
the applicants consent before mortgaging the property contrary to section 39
of the Land Act as amended. Failure to obtain consent rendered the
mortgage transaction unlawful and illegal. The manner in which the
mortgage was executed or obtained was unlawful and should be declared
void under sections 34 and 36 of the Mortgage Act 2009. The applicants
counsel further contended that the statutory declaration made by the second
respondent was not a statutory declaration at all because it was not attested
before a judge, registrar, magistrate or justice of the peace, a notary public
or Commissioner for oath as provided for under the Statutory Declaration
Act. In those circumstances the purported statutory declaration does not
amount to a valid statutory declaration.

Under section 39 (4) of the Land Act as amended where a mortgagee had no
notice of the requirement for spousal consent, the transaction is void but the
mortgagee has recourse to claim from any person with whom he or it
executed the transaction.

Secondly the applicants counsel submitted that the recovery process under
the mortgage was unlawful because section 19 of the Mortgage Act had not
been complied with. The mortgagee did not give 45 days’ notice as required
by section 19 (2) for the mortgagor to rectify any default. The mortgagee only
gave 21 days notice to the applicant. Consequently section 19 (d) was
improperly invoked to sell the applicants property and the process to recover
the sums claimed under the mortgage is incurably defective, and ought to be
declared null and void.

Lastly the applicants counsel submitted that it was just and fitting that the
application is allowed. Counsel contended that the second respondent gave a
power of attorney to the first respondent and after giving that power of
attorney she could not again sign the mortgage herself. All documents and
instruments were supposed to be made in the second respondent’s names.
The loan facility documents are in the names of A M (U) Ltd and the money
was paid to the company and not the second respondent. The signing of the
mortgage with the second respondent was meant to ratify the transaction
between the principal debtor and the first respondent and cannot stand
according to the authority of Imperial Bank of Canada versus Begley
[1936] 2 All ER 367 which holds that an act is done for the agents own
purposes to the exclusion and detriment of the principal will be outside the
scope of the power of attorney and not capable of ratification by the
principal.

Furthermore the facility documents envisaged transfer of the property into

the names of the principal debtor and it is safe to conclude that the second
respondent was the vendor in the circumstances as no other vendor is
mentioned. However the second respondent as a vendor was never paid.
Lastly it was a condition precedent before the proposed facility could become
available to the borrower for the duly executed and perfected security
documents to be in place. The requirement of transfer of the property into
the borrower’s names was never done. The first respondent did not comply
with the very terms of its loan facility agreement and therefore the
application should be allowed with costs.

In reply the first respondent's counsel submitted that though the Mortgage
Act 2009 empowers a spouse to challenge the legality of a mortgage under
sections 34 and 35, the applicant has failed to show his right as a spouse to
qualify for a declaration that the mortgage is void.

Counsel submitted that the Mortgage Act 2009 and the Land Act both do not
define a spouse. Black's law dictionary 8 th edition however defines the term
to mean one's husband or wife by lawful marriage. The question therefore is
whether the applicant was lawfully married to the second respondent at the
material time of the mortgage transaction. The Customary Marriages
(Registration) Act cap 248 defines a customary marriage as a marriage
celebrated according to the rights of an African community and one of the
parties to which is a member of that community. Secondly customary
marriages are supposed to be registered and certificates of marriage issued
as evidence. The applicant did not furnish a certificate but refers to a letter
he wrote to show that he paid dowry. The letter does not show whether it
came from the father of his purported spouse. Counsel further contended
that the consent of a father to a customary marriage of his daughter is
mandatory. For this proposition counsel relied on the case of Bruno Kiwuwa
vs. Ivan Serunkuma and Another HCCS No.52 of 2006. A letter written by
the applicant cannot prove any customary marriage. Consequently it does
not prove celebration of a customary marriage.

Secondly the second respondent when asked to disclose her marital status
declared that she was not married to anyone and that the mortgaged land
was not matrimonial property.

As far as failure to obtain consent before mortgage is concerned, counsel

submitted that section 4 (2) (a) and (b) of the Mortgage Act makes it
obligatory for parties to the mortgage to act honestly and in good faith and to
disclose relevant information relating to the mortgage. As a consequence
thereof the first respondent as mortgagor was obliged to disclose such facts
to the bank before extension of the facility to the borrower. In the second
respondents affidavit in reply, she asserts she was married at the time of the
transaction. Yet she had issued a statutory declaration that she was
unmarried and that the property was not matrimonial property at the time of
application for a loan. The duty is imposed on the mortgagee under section 5
(2) of the Mortgage Act to ascertain whether the intending mortgagor is
married and whether or not the property to be mortgaged is matrimonial
property. Under subsection 3 the duty is discharged if he obtains a marriage
certificate issued in accordance with the laws of Uganda and in the absence
of it a statutory declaration from the spouse or spouses of the mortgagor as
proof of marriage. The first respondent required the mortgagor (the second
respondent) to disclose her marital status whereupon she deposes a
statutory declaration asserting that she was unmarried and the property was
not matrimonial property. In those circumstances the first respondent took
reasonable steps to ascertain whether the intending mortgagor was married
and whether or not the property to be mortgaged was matrimonial property.
The first respondent bank was led to believe that the property was not
matrimonial property.

On the basis of the statutory declaration the first respondent's counsel

contends that the mortgaged property was not matrimonial property.
Secondly the Mortgage Act and section 2 thereof defines a “matrimonial”
home to mean a building or part of the building to which a husband and wife
or as the case may be the wives and children if any ordinarily reside and
includes: where a building and its cartilage are occupied primarily for
residential purposes, that cartilage and outbuildings on it or where a
building is occupied in conjunction with agricultural land or pastoral land,
any land allocated by one spouse to his or her spouse or in the case of the
husband to his spouses for her or their exclusive use. A mortgage of the
matrimonial home is valid where an intending mortgagee takes reasonable
steps to ascertain whether or not the intending mortgagor is married and
whether or not the property to be mortgaged is matrimonial property. The
mortgagee ascertained the marital status of the applicant under regulations
3 and 18 of the Mortgage Regulations 2012.

Even though the statutory declaration was not properly commissioned, the
document has the effect that the second respondent intended the bank to
know that she was unmarried and that the property was not matrimonial
property.
Concerning the position of the law regarding mortgaged property, counsel for
the first respondent submitted without prejudice that in the unlikely event
that the court holds that the property is matrimonial property, the court
should find that by the time the mortgagor intended to secure the loan with
the property, she knew that the property would be subjected to possible sale
in the event of default. A person who pledges property as security has in a
way agreed that it should be sold upon default of the borrower. Counsel
relied on the case of David Luyiga versus Stanbic Bank (U) Ltd
miscellaneous application number 202 of 2012 persuaded by the holding
in Matex Commercial Suppliers Ltd and another versus Euro Bank Ltd
in Liquidation (2008) 1 EA 216 that such a mortgagor agrees that the
property is suitable for security and cannot plead that the property has
sentimental or spiritual value or sanctity.

On the question of requisite notices counsel submitted that it is within the

mortgagees rights under section 26 of the Mortgage Act to sell property
which has been mortgaged upon default of the borrower. The first
respondent issued a notice of default together with a notice of sale under the
provisions of section 19 of the Mortgage Act and regulations made there
under. Notice of default was issued to the second respondent and AM (U) Ltd
under section 19 (2) and (3) of the Mortgage Act and the Mortgage
Regulations and regulation 32 thereof on 5 th of June 2012 and 21 days
notice elapsed. The applicant filed the action in October 2012, 90 days after
the notice of default and sale had been issued. The submission that there
was no notice of default of 45 days is premature. Because the mortgagor did
not rectify the default, the bank was entitled to sell the property. As far as
the power of attorney granted by the second respondent to the company to
borrow money is concerned, it was clearly a power to pledge the property as
security to Equity Bank (U) Ltd. It was not the first respondent's duty to
ensure that the proceeds of borrowing were remitted to the second
respondent and the matters between the second respondent and AM (U) Ltd
was their own arrangement and the bank was not privy thereto.

The first respondents counsel further submitted that that courts are temples
of justice and should apply equity to protect rights and redress legal wrongs.
The applicant and the second respondent colluded after the notice of default
and sale of the property to defeat the interest of the first respondent and to
that extent second respondent averred in an affidavit that the property was
family property she mortgaged without the consent of her husband. It shows
a total breach of her obligations created under section 4 and her dishonesty.
She never disclosed the relevant information relating to the mortgage making
her culpable under section 4 (2) of the Mortgage Act. She acted in breach of
duty to disclose relevant information and act in good faith. Counsel further
submitted that under section 36 (2) of the Mortgage Act the court is barred
from declaring a mortgage void unless it is satisfied that the circumstances
justify it. In the circumstances of the case the applicant has raised no
satisfactory grounds to nullify the mortgage and application should be
disallowed.

In rejoinder the applicants counsel submitted that the letter of the applicant
is a valid document showing that dowry was paid. Secondly there is no rule
of law requiring such a letter to the written by parents of the bride. Thirdly
that registration of a marriage under section 1 of the Customary Marriage
Registration Act is for evidential purposes but does not render an
unregistered marriage null and void. The penalty imposed by section 20 of
the Customary Marriage Registration Act for failure to register a customary
marriage does not render such a marriage null and void for non-registration.

As far as the duty to act honestly and in good faith for purposes of disclosing
relevant information is concerned, whatever transpired between the first
respondent and the second respondent was unknown to the applicant.
Secondly the first respondent cannot deny that there was no statutory
declaration to the effect that the second respondent was not married. Even if
the first respondent acted innocently, under section 39 (4) of the Land Act as
amended the transaction as it stands is still void. A purchaser under that
Act is defined to include a mortgagee.

As far as the position of the company to pledge the property as security is

concerned, the power of attorney has to be strictly interpreted and
construed. A strict interpretation shows that the respondents acted outside
the powers given thereby rendering the mortgage null and void. A M (U) Ltd
clearly acted for itself and not for the donor of the power of attorney. In
those circumstances the first respondent should recover its money from AM
(U) Ltd.

As far as the requisite notices are concerned form 6 of schedule 2 of the

Mortgage Regulations provides for a period of notice within 21 days but the
Act itself is provides for not less than 21 days showing an inconsistency.
Because the notice did not stipulate that it was not less than 21 days, it
does not matter whether 90 days have lapsed after the giving of notice. The
notice given is not the notice of default envisaged in the law.

Judgment

The Applicant's suit was brought by originating motion under the provisions
of sections 33, 34, 35 and 36 (1) of the Mortgage Act and order 52 rules 1
and 3 of the Civil Procedure Rules for review of the mortgage by declaring it
void.

The head note of section 33 of the Mortgage Act deals with and is worded as:
“application for relief by mortgagor”. It provides that an application to the
court for relief against the exercise by the mortgagee of any of the remedies
referred to in section 20 may be made by the mortgagor; if two or more
persons are joint mortgagors, by one or more of them on their own behalf; by
a spouse or spouses of the mortgagor; or by the trustee in bankruptcy of the
mortgagor. The remedies of the mortgagee under section 20 is exercisable
where the mortgagor is in default and does not comply with the notice served
on him or her under section 19. In such cases the mortgagee may require
the mortgagor to pay all the monies owing on the mortgage; appoint a
receiver of the income of the mortgaged land; lease the mortgaged land or
where the mortgage is of a lease, sublease the land; enter into possession of
the mortgaged land or sell the mortgaged land.

In this case the applicant is the spouse of the second respondent/mortgagor

and has a right to bring an application for relief under section 33 of the
Mortgage Act. Section 34 on the other hand confers jurisdiction on the court
to review certain mortgages. An application may be made by a person or
persons mentioned in section 35 of the Act in the interest of justice. The
applicants may be the mortgagor or the mortgagee; a spouse or spouses of
the mortgagor, trustee in bankruptcy of the mortgagor; be a surety. The
court may review the mortgage where it was obtained through fraud, deceit
or misrepresentation by the mortgagor or in a manner containing a provision
which is unlawful. Lastly section 36 of the Mortgage Act gives the court
jurisdiction to declare the mortgage void or direct that the mortgage shall
have effect subject to such modifications as the court shall order or require
the mortgagee to repay the whole or part of any sum paid under the
mortgage or any related or collateral agreement by the mortgagor or any
surety or other person who assumed an obligation under the mortgage
whether it was paid to the mortgagee or any other person.

The applicant’s case is that the mortgagor is his spouse and that he was
married to the mortgagor/second respondent under a customary marriage
system. Secondly that the property was matrimonial property and because
his consent was not obtained before execution of the mortgage, the mortgage
was a nullity or void for want of consent under the provisions of section 38 A
(4) (c) of the Land (Amendment Act) 2004. On the other hand the first
respondent's case is that the second respondent/mortgagor was not married
to the applicant at the time of execution of the mortgage. Secondly she had
declared on oath under a statutory declaration that she was not married and
the property was not matrimonial property/family property. Counsels
further dwelt on whether the applicant had discharged the burden of proving
that the second respondent was his spouse.

It must be emphasised that the second respondent swore an affidavit in

reply in which she admitted that she was a spouse of the applicant at the
time of execution of the mortgage deed. Does that admission amount to proof
of marriage?

I have carefully reviewed the documentary evidence. Annexure A to the

affidavit of the applicant is a document indicating the dowry paid in respect
of the marriage of the second respondent. It is witnessed by three witnesses.
No other evidence was adduced. None of the witnesses of the alleged
customary marriage was produced. It is clear from the submissions of the
parties that there is agreement that no certificate of marriage under the
Customary Marriage Registration Act was issued or tendered in evidence.
The second document attached to the affidavit of the applicant annexure "B"
is an advertisement in the new vision newspaper of August 23, 2012
advertising property for sale. It shows that Messieurs A M (U) Ltd was a
debtor and the property being land and developments comprised in Kibuga
block 29 plot 1682 land at Kanjokya measuring approximately 0 0.18
hectares was advertised for sale. Annexure "C" to the affidavit in support of
the application is a notice of default issued to AM (U) Ltd and the second
respondent. It shows that the mortgagor defaulted on its obligations under
the mortgage executed on 17 March 2011 and the first respondent
demanded full payment of the outstanding sum of Uganda shillings
104,633,912/=. It was notice to rectify the default within 21 working days
from the date of the notice. The notice is dated 5th of June 2012. Annexure
"D" shows an offer of credit facilities to the directors A M (U) Ltd (hereinafter
referred to as the company) wherein the first respondent offered Uganda
shillings 100,000,000/= as a credit facility to the company. Under the
agreement the borrower was the company and the lender was the first
respondent. The directors of the company who accepted the terms of the
loan are Obulu Amos and Musiime Loyce Musika.

On the other hand the first respondent's documents include the loan offer
annexure "A" to the affidavit in reply. A power of attorney annexure "B" in
which the second respondent by an irrevocable power of attorney appointed
the company to be her true lawful attorney in respect of Kibuga Block 29
Plot 1682 land at Kanjokya to take possession of and pledge as security for
purposes of obtaining a loan from Equity Bank Uganda Limited and to
assign or otherwise deal with all and any income accruing from such
investment or any other dealings by the company on the property. Secondly
she gave them powers to execute all such instruments, documents and do
such acts, matters and things as may be necessary or expedient for carrying
out the powers granted under the power of attorney. She further undertook
to confirm or ratify whatever the attorneys lawfully did. The power of
attorney is also endorsed by the directors of the company. Annexure "C" is
the certificate of title showing that the property is registered in the names of
the second respondent. Annexure "D" to the affidavit in reply is a declaration
as to marital status of the 2 nd respondent dated 17th of March 2011. She
declares that at the time of execution of the mortgage deed in respect of the
land and property (the subject matter of this application), she was not
married to any person in any form of marriage recognised under the laws of
Uganda or elsewhere. She further provides that in the event that there was
discovery of any form of marriage solemnised under the laws of Uganda or
solemnised in any other country and recognised in Uganda as a valid
marriage concerning her, she would indemnify Equity Bank Uganda Limited,
its assigns or successors in title of any liability howsoever arising there from.
The declaration as to marital status is witnessed by Angela Kobel, an
advocate. Annexure "E" to the affidavit in reply is the mortgagor's approval
and consent under the provisions of section 5 (2) of the Mortgage Act cap
229. She further irrevocably and explicitly gave consent for purposes of
section 9 of the Mortgage Act to exercise the mortgagee’s powers of sale
under the mortgage by private treaty. The other documents are the notice of
default already referred to in the applicant’s affidavit. Additionally there is a
notice of sale of the mortgaged property addressed to the company and the
second respondent under section 26 of the Mortgage Act and is dated 5th of
July 2012.

The first point in controversy as indicated above is whether the second

respondent is a spouse of the applicant. As far as the second respondent
Constance Wakyemba and the registered proprietor of the property is
concerned, she has represented two conflicting and contradictory positions
on her marital status. In the first instance she signed a declaration that she
was not married under the laws of Uganda or under a marriage recognised
as valid under the laws of Uganda. This declaration was attacked by the
applicant's counsel as not amounting to a statutory declaration and should
not be taken into account. The second statement is the affidavit in reply of
the second respondent/mortgagor who asserts contrary to her earlier
statements to the first respondent/mortgagee that she was married to the
applicant at the time of execution of the mortgage.

As far as the declaration is concerned, the parties addressed the court on

the requirements of section 5 of the Mortgage Act 2009. Section 5 (2) (a)
provides that an intending mortgagee shall take reasonable steps to
ascertain whether an intending mortgagor is married and whether or not the
property to be mortgaged is a matrimonial home. Secondly in (b) an
intending mortgagor shall make full disclosure to the intending mortgagee as
to his or her marital status and whether or not the property to be mortgaged
comprises the matrimonial home. Lastly section 5 (3) of the Mortgage Act
provides that the mortgagee shall be deemed to have discharged the duty
under subsection 2 if the mortgagee obtains a marriage certificate issued in
accordance with the laws of Uganda, and in the absence of it, a statutory
declaration from the spouse or spouses of the mortgagor as proof of
marriage. The submission of the first respondent is that it carried out a due
diligence and established that the second respondent was not married. On
the other hand the applicant contended that this statutory declaration was
not a statutory declaration and ought not to be relied upon by the court.
Starting from the last point, a declaration under section 5 (3) imposes a duty
on the mortgagee to obtain a marriage certificate. Noted that the duty is for
the mortgagee, or in this case, the first respondent to take reasonable steps
to ascertain whether the intending mortgagor is married and whether or not
the property to be mortgaged is a matrimonial home. The provision is
inapplicable where the party/mortgagor is unmarried. Secondly a statutory
declaration under subsection 3 is obtained from the spouse or spouses of
the mortgagor as proof of marriage. Where it is asserted that the mortgagor
is unmarried, the question of obtaining a statutory declaration for his or her
does not arise. The duty to take reasonable steps by investigating whether
the intending mortgagor is married or not is not satisfied merely by
obtaining a statutory declaration from the intending mortgagor. As to what
reasonable steps are would depend on the circumstances of the parties. For
instance, would it not be sufficient to investigate from the locality of the
property whether it was matrimonial property and whether the mortgagor is
married?

Furthermore, the submissions of both counsels were premised on facts that

occurred before the Mortgage Act 2009 came into force. In those
circumstances, the particular requirement under section 5 which puts the
duty on the mortgagee to take reasonable steps to ascertain whether an
intending mortgagor is married and whether or not the property to be
mortgaged is a matrimonial home, is inapplicable. This is because the
mortgage offer relied upon by both parties is dated 17 th March 2011.
Secondly the power of attorney annexure "B" to the affidavit in reply was
executed on 15 March 2011. The so called “declaration as to marital status”
which was witnessed by an advocate is dated 17th of March 2011. It is
apparent that the transaction complained about occurred before the coming
into force of the Mortgage Act 2009. According to statutory instrument 2011
number 44 namely the Mortgage Act, 2009 (Commencement) Instrument,
2011 the Minister of Lands, Housing and Urban Development exercising
powers under section 1 of the Mortgage Act 2009 appointed the 2 nd day of
September 2011 as the date on which the Act come into force. Consequently
any duties and obligations at the time of execution of the mortgage in
question were made under the Mortgage Act cap 229. Under that Act, a
mortgage means any mortgage, charge, debenture, loan agreement or other
encumbrance, whether legal or equitable which constitutes a charge on an
estate or interest in Uganda or partly in Uganda and partially elsewhere and
which is registered under the Act. Section 115 of the Registration of Titles
Act (RTA), cap 230, permits a proprietor of any land under the operation of
the RTA to mortgage his or her land by signing a mortgage in the form of the
11th schedule to the Act.

Originally section 39 (1) of the Land Act Cap 227 restricted transfer of land
by family members without consent. Section 39 (2) exempted the provisions
of subsection 1 from applying to a mortgagee in exercise of powers sale
under the mortgage. Subsection 1 of section 39 required prior written
consent of a spouse before mortgaging family land. Section 39 was
subsequently amended by the Land (Amendment) Act, 2004 which
introduced section 38A for the first time and further substituted section 39.
The amended section 39 provides that no member of the family shall sell,
exchange, transfer, pledge, mortgage or lease any family land or enter into
any contract for the sale, exchange, transfer, pledging, mortgage or lease of
any family land. A critical reading of the provision imposes a duty on family
members not to carry out the prohibited transactions without consent. The
consent required has to be in the manner prescribed by regulations made
under the Land Act. What is even more interesting is that the provision
excludes transfer of property by a mortgagee in exercise of powers under the
mortgage. The provision forbids family members from transferring or
mortgaging land which is described therein.

Section 39 is read in conjunction with section 38A of the Land Act as

amended. Section 38A of the Act as amended gives every spouse security of
occupancy on family land which means a right of access to and a right of
residence therein. It provides that every spouse shall in every case have the
right to use the family land and to give or withhold his or her consent to any
transaction referred to under section 39 which may affect his or her rights.
Family land is defined to mean land on which is situated the ordinary
residence of a family and inclusive of where the family derives sustenance.
Alternatively where the family freely and voluntarily agrees that it should be
treated as qualifying as an ordinary residence or where they derive
sustenance. Consent to a spouse is provided for under regulation 64 of the
Land Regulations 2004, S.I 2004 No. 100 which provides as follows:

“64. Consent to transactions

(1) The recorder or registrar shall not register any transaction where the
consent required under section 34 or 39 of the Act is not produced, except
where there is an order of the tribunal or a court to dispense with that
consent.
(2) The application of a tenant by occupancy for consent of the registered
owner to a transaction shall be in Form 40 specified in the First Schedule to
these Regulations.

(3) The consent of a spouse(s) required for any land transaction under the
Act shall be in Form 41 specified in the First Schedule to these Regulations.”

Form 41 requires certain matters to be specified in the form. These are the
location of land the subject of consent; the approximate area; whether the
land is registered; what the land is used for or form of occupation of land
(e.g. farming, housing); the nature of the transaction and whether consent is
granted by the spouse and if refused the reasons therefore. The form is also
signed and dated by the spouse.

The duty is upon the registrar not to register any instrument without
consent of a spouse. The question remains how the registrar will ascertain
whether the registered proprietor/mortgagor is a married person. This
situation is made more complex by the provisions of the Registration of
Titles Act which makes the registration effectual upon the memorial being
entered to that effect by the registrar/Commissioner for land registration.
This is evident from section 54 of the RTA which provides as follows:

‘54. Instruments not effectual until registered.

No instrument until registered in the manner herein provided shall be

effectual to pass any estate or interest in any land under the operation of
this Act or to render the land liable to any mortgage; but upon such
registration the estate or interest comprised in the instrument shall pass or, as
the case may be, the land shall become liable in the manner and subject to the
covenants and conditions set forth and specified in the instrument or by this
Act declared to be implied in instruments of a like nature; and, if two or more
instruments signed by the same proprietor and purporting to affect the same
estate or interest are at the same time presented to the registrar for
registration, he or she shall register and endorse that instrument which is
presented by the person producing the duplicate certificate of title.”
(Emphasis added)

Entries in the register operate as notice to the whole world and on the basis
of which bona fide purchasers for value or subsequent mortgagees may be
protected. I have carefully considered the submission of the applicant that
they agreed with the second respondent that the property was for paying
school fees for their children. What is relevant is how a mortgagee or
commissioner for Land registration would be able to ascertain what that
agreement is in the absence of a written document on notice given by the
spouse or spouses of the mortgagor. In my opinion written agreement to that
effect is crucial. Such agreement does not create a trust relationship and
therefore can and should be registered with the registrar of titles where the
land has registered title as in this case. This is the only way there can be
notice to the world about an agreement to treat the property as matrimonial
property. What is even more definitive is that land from which a family
derives sustenance is defined to mean (a) land which the family farms; or (b)
land which the family treats as the principal place of residence and which
provides the livelihood of the family; or (c) land which the family freely and
voluntarily agrees, shall be treated as the family's principal place or source
of income for food. In either case it has to be land where the family resides.
Section 38A (4) of the Land Act as amended makes the fact that the land
must have a residence of the family apparent. The agreement in respect to
family land is defined therein as:

“family land” means land—

(a) on which is situated the ordinary residence of a family;

(b) on which is situated the ordinary residence of the family and from which
the family derives sustenance;

(c) which the family freely and voluntarily agrees shall be treated to qualify
under paragraph (a) or (b); or

The first conclusion is that the second respondent held out not to be a
married person. She executed documents to that effect and particularly a
declaration of marital status before an advocate. There is no requirement
that she ought to have made a statutory declaration under the Mortgage Act
2009. A statutory declaration under the Mortgage Act 2009 can only be
obtained from a spouse of an intending mortgagor. In this case the intending
mortgagor claimed not to be married at all. If she were a married person, the
statutory declaration would have been obtained from the applicant. Secondly
the question of obtaining the consent of a spouse under the Land Act as
amended firstly imposes a duty on the family member. Thirdly even if the
mortgagee were to be cautious to establish whether the property was
matrimonial property, it had to first establish whether the intending
mortgagor was a married person.

The second respondent’s case is purely a question of deception wherein the

second respondent held out to be unmarried. In those circumstances, the
duty imposed on the mortgagee was to establish whether the information
was true.

The statute is silent as to how a mortgagee would go about establishing

whether somebody is married or not. In a perfect situation, such information
should be available with the registrar of marriages. For emphasis section 6
of the Customary Marriage (Registration) Act cap 248 provides that all
parties to a customary marriage shall as soon as may be and not later than
six months after the date of completion of the customary marriage attend to
the office of the registrar of marriage with two witnesses to register details of
the marriage. Under section 10 thereof a certificate of customary marriage or
a certified copy thereof shall be conclusive evidence of the marriage for all
purposes in any written law. Particularly under section 16 of the Act all the
registers, monthly returns and indexes in the custody of the Registrar
General and the registrars of marriage districts shall be open for inspection
by members of the public upon payment of the prescribed fee. Finally under
section 20 of the Customary Marriage (Registration) Act, failure to register a
marriage within the time specified is an offence. It follows that it would be
due diligence on the part of an intending mortgagee to peruse the register of
marriages. It would be absurd for a mortgagee upon execution of the
mortgage done without the knowledge that a spouse existed, to be
confronted with an unregistered marriage celebrated with an unknown
person at the time of execution of the mortgage for purposes of avoiding
payment of a loan. It is my humble opinion that it would be sufficient to
peruse the register of marriages which operates as constructive notice to the
world. Last but not least, why should the mortgagee assume that someone is
married? It was the representation of the intending mortgagor that she was
not married at all and she undertook to indemnify the mortgagee if at all it
was discovered that she was married.

Furthermore counsels submitted on whether the mortgagee took reasonable

steps. The provision for taking reasonable steps is found under the Mortgage
Act 2009 which was not in force by the time the mortgage was executed
between the parties.

The court cannot take lightly the affidavit in reply of the second respondent
that she is married to the applicant after she had initially indicated that she
was not married to the mortgagee. This is not only collusion but amounts to
fraudulent misrepresentation. She does not give any reasons as to why she
made a declaration of her marital status witnessed by an advocate of the
High Court that she was not married at all. That information was meant to
deceive the first respondent. More so it was meant to induce the pledging of
the property in question as security without obtaining consent from a
spouse (if any).

Last but not least, in the absence of proof of customary marriage as provided
for by section 10 of the Customary Marriage (Registration) Act by production
of a certificate of customary marriage or compliance with the requirements of
the Act, the applicant has not discharged the evidential burden to prove his
customary marriage to the second respondent and to the required standard.
If the applicant wanted to rely on any customary marriage to the second
respondent, the very least that he should have done was to have had that
marriage registered under the provisions of section 6 of the Customary
Marriage (Registration) Act. Moreover it is an offence not to register a
customary marriage within the statutory period. The court should not
encourage unregistered marriages to operate as constructive notice or rely
on presumptions of marriage where there are third party rights which will be
adversely and unfairly affected. Registration puts the burden on the third
party to investigate and that burden is discharged if there is no registration
and the third party concludes that the subject of investigation is unmarried.
Registration would have been sufficient to operate as constructive notice on
the mortgagee that the second respondent was a married person
notwithstanding her assertion to the contrary.

I have further carefully considered judicial authorities to the effect that a

certificate of marriage acts as evidence and is not the marriage itself because
the validity of the marriage is proved in court when there is proof that the
marriage was celebrated according to the rights and traditions of an African
community in Uganda. I agree with the definition of a customary marriage
under section 1 of the Customary Marriage (Registration) Act which provides
that it means a marriage celebrated according to the rights of an African
community and one of the parties to which is a member of that community.
Those cases deal with the rights of the parties in the marriage and do not
affect third parties such as the mortgagee in this case. The presumptions
about equal rights in marriage also apply to the parties within that marriage.
In the case of third parties, it is pertinent that the marriage is registered as
required by the law so as to put them on constructive notice. It is necessary
for there to be a doctrine of constructive notice, that the marriage is a
registered marriage lest mortgagees are put to a hard task to establish the
material facts about property which is sought to be mortgaged.

This is not a case where a court seeks to establish whether there was a
customary marriage by calling witnesses. A mortgagee does not take
evidence and operates under the doctrine of constructive notice. At most it
should be proved that the spouse was living where the land is located and
thereby putting the mortgagee on notice that there could be a marriage,
albeit unregistered. In this case there is no evidence of occupation by the
applicant or any written agreement to treat the property as matrimonial
property and notified to the Commissioner for Land Registration.

In those circumstances and without deciding conclusively whether the

applicant and the second respondent are married, the marriage if any
cannot be relied upon for purposes of consent and particularly for purposes
of investigation by the mortgagee as to whether the mortgagor was a married
person and whether there was consent of a spouse. In other words the
applicant has not proved any locus standi to the requisite standard to bring
this action.

In the above premises and the circumstances of this case, the applicant’s
application cannot be granted and is dismissed with costs.

Judgment delivered in open court this 27 th day of May 2013

Christopher Madrama Izama

Judge

Julius Rwabinumi V Hope Bahimbisomwe ((Civil Appeal No. 30 of 2007))

[2008] UGCA 19 (19 June 2008);

JULIUS RWABINUMI ………………………………….APPELLANT

V HOPE BAHIMBISOMWE……………………………RESPONDENT

JUDGMENT OF TWINOMUJUNI, JA

This is an appeal from the judgment and orders of the High Court of Uganda
in which Hon. Justice Remmy Kasule granted to the respondent a Decree
Nisi and made various consequential orders. He also dismissed a cross
petition of the appellant with costs in which he had cross-petitioned for
divorce and various consequential orders.

The brief facts of the petition were that the appellant and the respondent
were wedded on 30 th August 2003 at Our Lady of Africa Mbuya Catholic
Church. Before this wedding, the two had lived together informally and
produced a baby boy on 28 th March 2003 named Edison Rubarema.
However, between the date of the wedding and July 2004, when the parties
separated, the marriage was strained and broke down irretrievably. It was
the case for the respondent that it was the conduct of the appellant that led
to the break down of the marriage. In her divorce petition dated 14 th
February 2005, she complained that the appellant was guilty of the following
conduct:-
(a)
Adulterous co-habitation with another woman with whom he had a baby
boy.
(b) Extreme cruelty leading to physical and mental torture.
(c) Persistently accusing her of involvement in witchcraft related conduct
without just cause.
(d) Repeatedly using abusive and derogatory language towards her
causing extreme mental torture and anguish.
(e) Forcefully ejecting her from the matrimonial home with his son on
baseless grounds.

The petition prayed for an order for divorce including an order that the
appellant maintains her and their child whom he had refused to maintain.
She also asked the court to award her possession of a number of properties
which she outlined in the petition.

In reply to the petition, the appellant denied the accusations of adultery,

cruelty or any other conduct alleged to have caused the breakdown of the
marriage. He also denied the paternity of Edison Rubarema.

In a cross-petition, the appellant prayed for divorce on the following

grounds:-
(a)
That the respondent was guilty of adultery that led to the birth of Edison
Rubarema.
(b) That the respondent had during the subsistence of their marriage
engaged herself in acts of witchcraft aimed at harming the appellant’s child
with assistance of her mother one Eva Bakeiha.
(c) That the marriage had irretrievably broken down.

The leaned trial judge, after hearing the evidence of all relevant witnesses
who were presented, granted to the respondent the decree nisi and made
other orders as already mentioned above. He dismissed the cross-petition
with costs to the respondent. Being disatisfied, the appellant appealed
relying on the following grounds of appeal:-

“1. The learned trial judge erred in law and fact when he held that the
appellant was cruel towards the respondent.
2. The learned trial judge erred in law and fact when he held
that the responded did not practice witchcraft.
3. The learned trial judge misdirected himself by failing to
properly evaluate and analyze the evidence on record and to consider
the respondent’s evidence and thereby came to wrong
conclusions.
4. The learned trial judge erred in law and fact when he ordered
that the parties share the various properties when the respondent
never proved any contribution towards acquisition of the same.
5. The learned trial judge erred in law when he awarded remedies
like paying for the maintenance of the child retrospectively and
interest against the appellant that were neither pleaded nor proved by
the respondent thus occasioning a miscarriage of justice.

At the hearing of the appeal before us, the appellant applied for leave to add
a sixth ground of appeal, which application was granted. The six ground of
appeal states:-
“The learned trial judge erred in law when he wholly dismissed the
appellant’s cross-petition.”

It should be noted from the start that the appellant did not raise a ground of
appeal challenging the finding of the trial court that Edison Rubarema was
an issue of the marriage between the appellant and the respondent. Since
this was one of the framed issues at the trial, it follows that the appellant
now accepts the finding of the trial judge that he was the father of the boy
and I see no reason why the finding should be disturbed on appeal. I shall
now consider the six grounds of appeal on their merits.

At a scheduling conference which took place before the Registrar of this

Court on 12th December 2007, the parties agreed, among other things that:
“Each party will go by its legal arguments in the conferencing notes
which will be supplemented by oral arguments on the day of hearing the
appeal.”

The conferencing notes are on record and the parties supplemented the
notes by oral arguments on the hearing of the appeal. In resolving the issues
presented by this appeal, I have to consider, not only the evidence adduced
in the High Court and the judgment of the court but also the conferencing
notes as supplemented by the oral arguments in this court.

At the hearing of the appeal, the appellant was represented by Mr. Obed
Mwebesa of M/s Nuwagaba, Mwebesa & Co. Advocates and the respondent
was represented by Mrs Veni Murangira of Murangira Kasande & Co.
Advocates. Both parties to the appeal were also physically present in court.

I propose to resolve the issues on appeal in the same order in which they
were argued by counsel before us.

GROUNDS ONE & AND TWO

For ease of reference, I reproduce these two grounds here:-

1.
The learned trial judge erred in law and fact when he held that the appellant
was cruel towards the respondent.
2. The learned trial judge erred in law and fact when he held that the
respondent did not practice witchcraft.

On the issue of cruelty, the learned trial judge held that the appellant was
cruel to his wife because:-
(a)
He boycotted taking food prepared by his wife.
(b) Persistently accusing her of adultery unjustifiably.
(c) Beating her several times and causing her mental torture whenever
she complained about his coming home very late at night.
(d) His persistent accusation that she and her mother were practicing
witchcraft without proof.
The appellant attacked some of these findings. He accused the trial judge of
failing to take into account his evidence rebutting the accusation against
him. He insisted that he had denied all of them and the court should have
believed him.

The trial judge considered the evidence of both the appellant and the
respondent on the issue of boycotting food. He stated:

“The petitioner’s evidence is that the respondent was, from start of

marriage, cruel to her because he boycotted taking food prepared by
her; preferred to take that of DW3, the house girl. Respondent admitted
this, explaining that, the boycott was due to the fact that the petitioner
was practising witchcraft on him. The only way for him to survive was
not to eat her food. “That is why I am around.”, he testified.

DW2, respondent’s young brother, also confirmed that he, too, for the
same reason boycotted food prepared by the petitioner.
DW3 did not deny preparing food for the respondent and DW2.

Court finds the conduct of respondent to boycott eating food prepared

by the petitioner, his wife, to be demeaning of her in front of the
occupants of the matrimonial home. This was aggravated by the
respondent approving his young brother, DW2, to behave likewise
towards the petitioner. The court holds such conduct to have amounted
to cruelty by the respondent to his wife, the petitioner.”

It is obvious that the trial judge considered the appellant’s defences but he
did not believe the evidence. It is a question of credibility. Dealing with the
other complaints on incidents of cruelty mentioned above the trial judge
found:-

“The petitioner also stated that the persistent coming back home
between 3.00 and 4.00 am at night by respondent, while in Kampala
from Mbale, was cruelty to her.

Respondent, in reply, first explained that, in so acting, he was

exercising his freedom to socialize with his friends. Later he
contradicted himself by denying that he was so behaving towards the
petitioner.

The court observed the respondent’s demeanour while denying this

accusation. He was subdued. He did not appear truthful. The petitioner
by contrast, was straight forward and clear in her testimony on the
matter. The court accepts her evidence as truthful and rejects the
denial of the respondent. The court holds such respondent’s conduct, of
persistent coming back home late at night, to have been cruelty to the
petitioner.
Petitioner further testified that the respondent was cruel to her
because of his repeated complaint to and against her, without any
justification, that she was having intimate affairs with other men and
was thus unfaithful to him. These men, respondent further complained,
were returning her home late at night. Because of this, she was picking
the respondent’s son, Eddie Rugambwa, late from school

Petitioner denied this accusation. DW2 and DW3, both staying at home
while respondent was in Mbale, never mentioned the same in their
respective testimonies. They also never testified that the child was
being returned home late from school. No man was named by
respondent as having had an affair with petitioner.

Court finds the above accusation against petitioner to have had no

foundation whatsoever. Thus it’s being perpetuated by the respondent
against his wife, the petitioner, amounted to cruelty to her.

Petitioner adduced evidence that respondent had at one time in the

course of the marriage, physically hit her with a chair. This is when she
had protested against his coming back late at night. He had also
physically assaulted her in other incidents. When these incidents
increased, she reported the same to police officers who knew the family
at Kira Road Police Station, CID Headquarters and Kabuli Training
School. The respondent, every time on being summoned, requested
police to let him and petitioner solve the misunderstandings, with the
elders, as a family matter. Once out of police, respondent would then
not allow any family elders to meet over the issue.

Respondent admitted that petitioner complained to police. He,

however, denied ever assaulting her. But PW3 and DW3 confirmed that
they had seen petitioner and respondent fight at Kisaasi home.
Respondent also gave no explanation as to what complaints he was
answering at police, if not those of assaults, reported by the petitioner.

Court accepts the evidence of petitioner that she used to be physically

assaulted by respondent now and then. This too was cruelty to her by
respondent.

The evidence of the petitioner that on 30.07.04, the respondent

ordered her together with the infant, Edison Rubarema, out of the
matrimonial home, is not controverted by the respondent.

The petitioner stated, and the respondent did not deny, that armed
men were placed at the gate at Kisaasi to see to it that petitioner leaves
and does not continue staying at the matrimonial home.

On the basis of this evidence court holds hat the way the petitioner was
made to leave the matrimonial home, by use of armed personnel,
amounted to cruelty by respondent to petitioner.

The court resolves the second issue by holding that, petitioner has
proved to its satisfaction, that respondent committed cruelty against
her.”

Again it comes out clearly that the trial judge considered the evidence of the
appellant along with that of the respondent, but he did not find it credible.
He rejected it. The court clearly stated why it found the evidence of the
respondent preferable on this matter. I find no fault with the judge’s finding
and I would uphold the same.
I have also studied the handling of the issue of witchcraft by the trial judge.
Again, the evidence of the appellant was considered at length and rejected as
not credible. The trial judge preferred the evidence of the respondent. He
therefore, concluded that it was not proved that she practiced witchcraft and
that continually accusing her and her mother of doing so also amounted to
cruelty. I find no fault within this analysis. The trial judge was entitled to
reject evidence he did not find credible. In my judgment, I find no merit in
the first two grounds of appeal which should fail.

GROUND NO. THREE

3.
The learned trial judge erred in law and fact when he held that the
respondent did not practice witchcraft.
On this ground, the appellant sought to challenge the trial court’s right to
prefer the evidence of the respondent, to that of the appellant, DW2 and
DW3 on the issue of witchcraft. He further submitted that the evidence of
DW2 and DW3 was totally ignored which led him to arrive at a wrong
conclusion.

A perusal of the judgment of the trial judge shows that the judge considered
at length the evidence of the appellant, DW2 and DW3. He did not find it
satisfactory or reliable. He rejected it. He was entitled to do so. Therefore I
find no merit in this ground of appeal which should fail.

GROUND NO. FOUR

This ground states:

“The learned judge erred in law and in fact when he ordered that the
parties share the various properties when the respondent never proved
any contribution towards acquisition of the same.”

In arguing this ground, counsel for the appellant complained that the trial
judge was wrong to award the respondent various portions of matrimonial
property when she did not produced documentary evidence to prove her
contribution to the acquisition of the property. He also complained that the
evidence of the appellant on sharing matrimonial property was totally
ignored by the trial judge thus arriving at a one sided conclusion on the
matter.

On the other hand counsel for the respondent submitted that the trial judge
was correct in his decision to order the sharing of the property. He cited
Article 31 of the Constitution of Uganda, 1995, and the authority of Tom
Kintu Muwanga vs Myllionus Gafabusa, Divorce Appeal No.135 of 1998
(HC).

This ground of appeal raises a number of fundamental questions as to what

happens to matrimonial property after divorce. Answers to two questions are
particularly called for.
(a)
Is there an established formula for division of the matrimonial property after
the dissolution of a marriage under the Divorce Act?
(b) To what extent should the contribution of the spouses to the
acquisition of each property be taken into account?

The law applicable to the holding and division of matrimonial property after
divorce is that contained in our Divorce Act (Laws of Uganda Cap249) and a
long line of decisions of the British Courts and those of Uganda Courts
basing mainly on the Common Law provisions of marriage and divorce. Both
of these have a long history of treating the woman as an inferior partner in
marriage. A woman was regarded as a property of the man and totally
incapable of holding property of her own independently of man. As a result,
the earlier court decisions held that women in a matrimonial relationship
could not acquire and hold real property. Later on, the decisions started
recognising the right of women to hold property in their own right. Examples
of such a decisions are to be found in Chapman vs Chapman [1969] ALL
ER 476, Gissing vs Gissing [1970] 2 ALL ER 780 and Falconer vs
Falconer [1970] 3 ALL ER 449.

In this last mentioned case, the spouses and their parents had made varying
contributions directly and indirectly to the construction of a matrimonial
home which was at the time of divorce standing in the names of the wife.
After divorce, the wife tried to exclude her former husband form benefiting
from the house. The Court of Appeal, per Denning, MR had this to say:-

“The next point taken by the wife in the notice of appeal is that while
the parties lived together, the husband’s contributions were made
wholly or mainly in respect of housekeeping expenses’; that, on this
account, they should not be regarded as contributions to the house or
to paying off the mortgage instalments. This sort of point was discussed
in Gissing v Gissing , and I will try to distil what was said. The House
did not overturn any of the previous cases in this court on the subject.
They can, i think, still provide good guidance. But the House did make
clear the legal basis for them. It stated the principles on which a
matrimonial home, which stands in the name of husband or wife alone,
is nevertheless held to belong to them both jointly (in equal or unequal
shares). It is done, not so much by virtue of an agreement, express or
implied, but rather by virtue of a trust which is imposed by law. The law
imputes to husband and wife an intention to create a trust, the one for
the other. It does so by way of an inference from their conduct and the
surrounding circumstances, even though the parties themselves made
no agreement on it. This inference of a trust, the one for the other, is
readily drawn when each has made a financial contribution to the
purchase price or to the mortgage instalments. The financial
contribution may be direct, as where it is actually stated to be a
contribution towards the price of the instalments. It may be indirect, as
where both go out to work, and one pays the housekeeping and the
other the mortgage instalments. It does not matter which way round it
is. It does not matter who pays what. So long as there is a substantial
financial contribution to the family expenses, it raises the inference of
a trust. But where it is insubstantial, no such inference can be drawn,
see the cases collected in the dissenting judgment in Gissing vs Gissing
of Edmumund Davis LJ , which was upheld by the House. The House did,
however, sound a note of warning about proportions. It is not in every
case that the parties hold in equal shares. Regard must be had to their
respective contributions. This confirms the practice of this court. In
quite a few cases we have not given half-and-half but something
different.”

As I understand it, where the contribution of spouses to matrimonial

property is substantial, then there is an inference that the spouses created a
trust in the property whether it is in the name of the husband or wife. The
spouses own the property equally. However where the contribution of one of
them is not substantial, then the courts would have to determine the
contribution of each one in order to equitably divide such property.

It is now generally accepted that in Uganda or Africa where most rural wives
are not employed or in salaried employment, contribution does not
necessarily mean cash payments. It is sufficient if as a result of division of
labour, the spouses perform different functions all which enhance the good
of the family including the acquisition of matrimonial property like the one
in question - See the Kenyan Court of Appeal persuasive authority of
Kivuitu vs Kivuitu, Civil Appeal No.26 of 1985 (C.A) and the Uganda
High Court Divorce Appeal No.135 of 1998 Tom Kintu Muwanga vs
Myllious Gafabusa Kintu . However, as rightly observed by Hon. Lady
Justice S.B. Bossa, J in Kintu Muwanga ( supra), the position of Ugandan
women in a matrimonial relationship has drastically changed since 1995
Constitution came into force. Article 31(1) of the Constitution provides:-

“Men and women of age of eighteen years and above, have the right to
marry and to found a family and are entitled to equal rights in
marriage, during marriage and its dissolution.” [Emphasis supplied]

In this petition, we are dealing with the dissolution of a marriage contracted

in Church under the christian tradition. Quoting the bible here cannot be
regarded as far fetched.

In Genesis Chapter 2 verses 21-25, we find the following provision:

“The Lord God made the man fall into a deep sleep, and while he was
sleeping, he took out one of the man’s ribs and closed up the flesh. He
formed a woman out of the rib and brought her to him. Then the man
said,

“At last, here is one of my own kind – Bone taken from my bone, and
flesh from my flesh. ‘Woman’ is her name because she was taken out
of man.”
That is why a man leaves his father and mother and is united with his
wife, and they become one. ” [Emphasis supplied]
This statement supports the above cited constitutional provision, that
though woman was created differently from man, yet they were made for
each other to be equal to each other in unity as one.

The parties to this appeal were married in the Christian tradition on 30 th

August 2003. The ceremony took place in Our Lady of Africa Mbuya Catholic
Church. All those who choose to be married in Church must take vows at
the precise moment when they become husband and wife. The vows are to
the effect that they undertake to live together as husband and wife, in
shared companionship in riches or poverty.

These vows are usually made in presence of hundreds and sometimes

thousands of their parents, relatives and friends. My understanding of the
vows is that at the time the bridegroom and the bride become husband and
wife, all the property they own become joint property. All the property they
acquire during the subsistence of their marriage is theirs to share equally in
unity and love. At the time of the vows, it is never envisaged that the
spouses would have to split. In fact they are told in Church that:

“That which God has put together let no person divide”.

Unfortunately, however, marriage breakdown are so common these days and

have become a reality that cannot be ignored. Divorce proceedings normally
follow. The issue as to what should happen to their joint property arises for
determination as in this case.

In my humble judgment, I do not see why the issue of contribution to the

property should arise at all. The property is theirs – Period. In 1995, for the
first time in our history, the Constitution of Uganda clearly put into reality
the equality in marriage principle contained in Genesis Chapter 2 verse 24
(supra) and what those who choose to contract marriages under the
Marriage Act undertake to practice. My conclusion is that matrimonial
property is joint property between husband and wife and should be shared
equally on divorce, irrespective of who paid for what and how much was
paid. Very often, the woman will find a husband who is already wealthy and
has a lot of property. If that property belongs to the man at the point of
exchanging the vows in Church, that property becomes joint property. These
days it is normal for a woman to come into marriage with wealth such as
houses, land, cows and other properties form her own sweat, her parents,
relatives and friends. If at the time of the Church vows, they are solely
owned by the woman, they become joint matrimonial property. From then
onwards the fact that they are registered in the names of the wife or
husband is not relevant. It belongs to both. Therefore on separation they
should be equally divided and shared to the extent possible and practicable.

I must hasten to add that this categorical statement is confined to the

marriages under the Marriage Act, Cap.251 Laws of Uganda. This does not
mean that the constitutional requirement of equality in marriage does not
apply to other types of recognised marriages in Uganda. The principle
applies to all marriages in Uganda. However, the application of the principle
may vary depending on the nature of the marriage contract the spouses
agreed to contract. I would also add that like in all other contracts, parties
to a marriage have a right to exclude any property from those to be deemed
as matrimonial property. This can be made expressly or by implication
before marriage or at the time of acquisition of the property by any spouse.
Otherwise the joint trust principle will be deemed to apply to all property
belonging to the parties to the marriage at the time of the marriage and
during its subsistence.

In the instant appeal, the learned trial judge tried as much as he could to
share what he found as matrimonial property between the appellant and the
respondent. However, he did not follow the formula proposed above. He took
into account to what extent the spouses had contributed to the acquisition
of each property in question. He was obviously following the common law
and both British and local authorities which have followed. Most of those
decisions were made before the promulgation of Uganda 1995 Constitution.
Nevertheless, I do not think that we should disturb his findings and division
of the property, especially when the respondent did not cross-appeal against
it. I would uphold the decision of the trial judge on this issue. This ground of
appeal should fail.

GROUND NO. FIVE

It states:
“The learned trial judge erred in law and fact when he awarded remedies
like paying for the maintenance of the child retrospectively and
interest against the appellant that were neither pleaded nor proved by
the respondent thus occasioning a miscarriage of justice.”

There are two matters raised in this ground of appeal”-

(a)
That the trial judge awarded remedies which were neither pleaded nor
proved.
(b) That the remedy for maintenance of the child was given a
retrospective effect.

It is true that the learned trial judge made the following order:-


“The respondent as a father, is ordered to contribute to the
maintenance of the child’s health, welfare and development which shall
also include hospital and other expenses due to sickness, school fees
and other education related expenses when the child becomes of school
going age.
Such respondent's contribution shall be paid to the
petitioner in advance every six months commencing 01.09.06.
The court holds that as from 30.07.04, the date the
petitioner and the child were chased away by the respondent, the total
monthly maintenance cost on the child has been shs.150,000/= thus
making a total of shs.3,750,000/= to date. The respondent’s share is
half of this sum: shs.1,875,000/= which the respondent is ordered to
pay forthwith to the petitioner.
The sum of shs.75,000/= shall continue to be due
contribution of respondent towards maintenance of the child until
further orders of the court.”

In my judgement, there is nothing wrong with this order. The trial judge
found that the child of the marriage had not received any maintenance from
its father since 30.07.04. Yet it is the duty of a father, as in this case, to
contribute to the maintenance of his child. It was proper for the trial judge
to order the appellant to maintain the boy from the time he chased him away
from his home.

As for the complaint that the court made awards which were neither pleaded
nor proved, I find no fault with the courts order. These are consequential
orders of the court which must be proved but need not be specifically
pleaded. Their being awarded depends on whether the main subject matter
of the suit has succeeded or not. They are intended to give a full meaning of
the verdict in the dispute. They can be awarded under the prayer for “any
other remedy the court may think fit.”
As to whether the petitioner had proved the awards, she gave oral evidence
to the effect that since she left the matrimonial home, she was spending
shs.150,000/= per month on feeding, school fees, medical care and other
general expenses. Proof does not necessarily demand that a receipt for every
item should be produced. It is within the discretion of the trial judge to
determine weather the oral evidence is credible.

In the instant case, the appellant did not challenge the claim presumably
because his line was that the boy was not his anyway. In these
circumstances, the trial court was within its rights to hold that the figure of
shsl.150,000/= was a reasonable estimation in the circumstances. I find no
merit in this ground of appeal, which should fail.

GROUND NO SIX

This ground states:-

“The learned trial judge erred in law when he wholly dismissed the
appellant’s cross-appeal.”

The appellant submitted that the dismissal of his cross-appeal was

erroneous because it contradicted the holding of the leaned judge that the
marriage had irretrievably broken down. In his view, since one of his
grounds for the cross-appeal was irretrievable break down of marriage, he
should have allowed the cross-appeal, at least to that extent.

The cross-petition of the appellant was based on three grounds:-

(a)
Adultery.
(b) Practising witchcraft.
(c) Irretrievable breakdown of marriage.

The learned trial judge found no evidence to support the grounds of adultery
and practicing witchcraft. He also did not find evidence to support the
appellant’s claim that the marriage had irretrievably broken down as a result
of the respondent’s conduct or misconduct. He found that the marriage had
irretrievably broken down due to the misconduct of the appellant. The claim
could only have succeeded if the court had found fault with the respondent’s
conduct leading to the irretrievable breakdown of the marriage. I find no
merit in this ground of appeal, which should fail.

In the result, I would hold that this appeal has no merit and therefore it
should be dismissed with costs to the respondent here and in the High
Court.

Dated at Kampala this……19 th …..day of ……June…..2008.

…………………………………..
Hon. Justice A. Twinomujuni
JUSTICE OF APPEAL

Alice Okiror & Anor v Global Capital Save 2004 & Anor (CIVIL SUIT NO.
149 OF 2010) [2012] UGCOMMC 62 (14 June 2012);

1. ALICE OKIROR }
2. MICHAEL OKIROR }:::::::::::::::::::::::::::::::::::::::
PLAINTIFFS

VERSUS
GLOBAL CAPITAL SAVE 2004 LTD}

1. BEN KAVUYA }::::::::::::::

DEFENDANTS

BEFORE HON. LADY JUSTICE HELLEN OBURA

JUDGMENT

This suit was brought by the plaintiffs jointly and severally seeking for
declaration that:- the plaintiffs have paid up the loan of Ug. Shs
53,000,000/= together with interest in full and the interest charged on the
loan by the defendant is illegal, harsh and unconscionable; an order that the
defendants do return to the plaintiff the Certificates of Title comprised in
Kyadondo Block 253 Plot 863 at Lukuli in the name of Alice Okiror and
Kyadondo Block 229 Plot 1253 land at Kireka Kamuli Zone in the name of
Aguti Rose, special damages of Ug. Shs. 192,500,000/=, general damages,
interest on the special and general damages as well as costs.

The defendants in their written statement of defence (WSD) denied the

allegations in the plaint and contended that the 1 stdefendant advanced to
the first plaintiff a medium term loan of Ug. Shs. 350,000,000/= repayable
by 20thDecember 2008 which was secured by a legal mortgage created over
land comprised in Mailo Register Block 253 Plot 863 at Lukuli Kampala.
Further that the legal mortgage was duly registered vide Instrument No. KLA
423268 on 23 rdJuly 2009. The defendants denied that they accepted or
received Certificate of Tile for land comprised in Block 229 Plot 1253 land at
Kireka in the names of Rose Aguti as security for the loan advances. The
first defendant also contended that the first plaintiff failed to repay the loan
in full and only paid the sum of Ug. Shs. 230,000,000/= leaving an unpaid
balance of Ug. Shs. 120,000,000/=.
In their reply to the WSD the plaintiffs stated that they never received a
sum of Ug. Shs. 350,000,000 from the 1 stdefendant and maintained that the
legal mortgage relied upon was invalid and unenforceable as it was not
executed by the mortgagee or at all. They contended that mere registration of
an invalid mortgage does not validate it or make it legal and enforceable. The
plaintiffs also averred that the 1 stplaintiff signed a mortgage deed that was
blank and the figures were only filled in by the defendants. Further that they
initially gave the defendants a Certificate of Title for Block 229 Plot 1253 at
Kireka as security for a loan of Ug. Shs 8,000,000 but when they sought for
a loan of Ug. Shs. 53,000,000 they presented the title for Block 253 Plot 863
at Lukuli but the defendant refused to release the earlier title.

At the scheduling, the agreed facts were that the plaintiffs obtained a
mortgage loan from the 1 stdefendant on the 26 thday of February 2008. The
loan was secured by land title comprised in Kyadondo Block 253 Plot 863 at
Lukuli and a mortgage was duly registered. The parties also agreed that the
plaintiffs have paid the defendants Ug. Shs. 230,000,000 in settling the
loan. The defendants threatened to exercise a power of sale under the
mortgage. The Certificate of Title to Kyadondo Block 253 Plot 863 is in
possession of the defendants.

The parties agreed on the following issues for determination:

1. Whether the Mortgage Deed dated 26 thFebruary, 2009 between Alice

Okiror & Global Capital Save (2004) Ltd was valid.
2. What was the amount of the loan advanced and secured by the
mortgage?
3. Whether the 1 stdefendant charged any interest on the loan and if so
how much?
4. Whether the interest charged by the defendants, if any, is
unconscionable.
 5. If so whether the plaintiffs have discharged their obligations.
6. Whether the plaintiffs are entitled to the remedies sought.

I find it necessary at this point to give chronology of events that took place
between the time this matter was scheduled and set down for hearing and
today when this judgment is delivered because they have a bearing on the
conduct and progress of this case. At the scheduling, the parties agreed to
adduce evidence by way of witness statements which was duly done. The
plaintiff had scheduled to call three witnesses but only two filed witness
statements which they were cross-examined upon. Similarly the defendant’s
two witnesses filed witness statements but only one witness appeared in
court for cross-examination for reason that is elaborated here below.

On 6thApril 2011 when this matter came up for hearing, the 2 nddefendant
was not in court. Counsel for the defendants informed court that he was still
out of the country. Upon closure of the plaintiff’s case on the same date, the
defendants could not open their case due to the absence of the 2 nddefendant
who is also the Managing Director of the 1 stdefendant company. An
adjournment was sought to enable him appear. Court granted the prayers
and hearing of the defendants’ case was adjourned to 8 thJune 2011.

On 8thJune 2011 an accountant in the first defendant company who had

filed a witness statement was present. The 2 nddefendant who was the other
witness was still reported to be out of the country despite the fact that a long
adjournment was given to enable him return and testify. Court then ruled
that the 2nddefendant’s evidence be dispensed with and his witness
statement be disregarded since he did not appear to be interested in giving
evidence.

Court proceeded to hear the evidence of the accountant Mr. Sam Kamwada.
He confirmed his witness statement already on court record and was cross
examined upon it. During cross examination of DW1, counsel for the
plaintiff prayed for orders that the witness produces receipts of various
payments made in respect of the transaction and the demand note. Although
this prayer was made belatedly, court granted it in the interest of justice and
for reason that all relevant materials if made available to court would
facilitate it to arrive at a just and fair decision. In any case the defendant’s
counsel had not shown that any prejudice would be occasioned to his clients
by production of those documents. The matter was adjourned to 31 stAugust
2011 for further cross examination and to enable DW1 produce the
documents he undertook to furnish to court.

On the 31stAugust 2011, DW1 and counsel for the defendants did not
appear in court. Counsel holding brief for the defendants’ counsel sought an
adjournment and the hearing of the case was adjourned. On 19 thJanuary
2012, DW1 appeared with only two of the documents and was cross
examined and re-examined on his evidence. Both counsel sought to file
written submissions and time lines were set within which the same should
be done. The matter was then fixed for mention to ensure compliance and
give a date for judgment.

On 16thMarch 2012, when the case came up for mention, counsel for the
defendants did not appear. He had also not filed his written submission
which court directed him to file by 23 rdFebruary 2012. The defendants were
also absent and no explanation was provided for that turn of events.

Court then ruled that it would proceed to decide the suit on the basis of the
evidence and submissions on court record in accordance with Order 17 rule
4 of the Civil Procedure Rules. The written submissions of the defendants
were consequently dispensed with.
However, on the 30 thMay 2012 at around 4.00 pm as court was in the final
stages of preparing the judgment, a copy of the defendants’ written
submission filed by their counsel the previous day 29 thMay 2012 at 4.30 pm
was brought to court’s attention. I found this rather unprofessional to say
the least. For counsel to have waited for almost the eve of delivering the
judgment and rushed to court with his written submission without first
showing cause why he had in the first place failed to file it as directed, was
in my view, conduct unbecoming of an advocate. This court had made an
order to dispense with the defendants’ written submission and that order
had not been set aside. I therefore do not see how the submission could just
be filed as if there was no court order dispensing with it.

Be that as it may, when this matter came up for judgment on 31 stMay 2012
counsel for the defendants appeared and prayed that the order to dispense
with the defendants’ submission be set aside and the defendants’ written
submission that was already filed be accepted. The ground of this prayer
was that counsel fell sick soon after the matter was adjourned for
submissions and this prevented him from filing the submission in time and
appearing in court on the date of mention. He prayed that in the interest of
justice the inordinate delay caused by his ill-health should not be visited on
his clients.

Counsel for the plaintiffs left the matter for court to decide but prayed that
in the event that court was inclined to accept the submission, he should be
allowed to make a rejoinder.

In the interest of justice, court set aside the order and accepted the
submission. It observed that getting submissions from both sides would
facilitate it to come up with a just and fair decision having fully listened to
both sides of the dispute. Counsel for the plaintiffs was allowed to file a
rejoinder and a new date for judgment was set. Counsel for the plaintiffs
filed his rejoinder as allowed.

With that background highlighted, I now proceed to consider the issues

agreed upon.

ISSUE 1: Whether the Mortgage Deed dated 26 thFebruary, 2008

between Alice Okiror & Global Capital Save (2004) Ltd was valid.

On this issue, the 1 stplaintiff, Mrs. Alice Mary Anyait Okiror (PW1) stated in
her witness statement that she is the registered proprietor of the property
comprised in Kyadondo Block 253 Plot 863 comprising of a bungalow and a
flat where she has lived with her family since 1997. PW1 informed court that
with her husband they approached Mr. Kavuya sometime in 2008 for a short
term loan of Ug. Shs 12,000,000/= which they secured with the title of land
comprised in Kyadondo Block 229 Plot 1253 at Kireka.

It was her evidence that the Certificate of Title in the name of Aguti Rose
was retained by Mr. Kavuya and that later on in February 2008 they sought
to borrow and amalgamate a loan of Ug. Shs 41,000,000 from Mr. Kavuya
with the earlier loan of Ug. Shs 12,000,000/= to make it a total of Ug. Shs
53,000,000/=. Further that Mr. Kavuya demanded for another security upon
which she gave him the title for their home comprised in Kyadondo Block
253 Plot 863 at Lukuli.

The mortgage deed was marked as Exhibit D1. It was also the evidence of
PW1 that she made requests in writing for extension of the loan but the
words in the requests were at all times dictated by the second defendant who
did not want her to state the amount owed in her requests. She further
stated that she handed over the Certificate of Title for Block 253 Plot 863 to
the accountant of the 1 stdefendant.
Michael Okiror, PW2 in his evidence kept insinuating that he was part of
the transaction and yet the agreement shows that it was his wife who was a
party and not him. He however corroborated the evidence of PW1 on the
amount that was lent and that a mortgage was created over the property in
dispute. He also stated that although he had agreed with his wife to borrow
money, they agreed to use

Agnes Bainomugisha v DFCU Ltd ((HCT-00-CC-MA-0435-2007)) [2007]

UGCOMMC 74 (18 September 2007);

BEFORE: THE HONOURABLE MR. JUSTICS FMS EGONDA-NTENDE

RULING

1. The applicant is seeking a temporary injunction to restrain the

respondent from selling or otherwise dealing with the suit property
comprised in Plot No. 15 Kashari Block 18 Folio 8 Volume 2514 Mbarara
until the hearing and determination of the main suit. Ten grounds have been
put forth on the notice of motion in support of this application. The
application is supported by an affidavit sworn by the applicant. and is
opposed by the respondent which has filed an affidavit in reply.
2. The facts of this case are not substantially in dispute. The applicant’s
husband, Mr. Frank Baine Bitamazire, is the registered proprietor of the suit
land. Mr. Frank Baine Bitamazire, granted powers of attorney over the suit
land to Bainebitamazire Mixed Farm Ltd, which company in 2002 mortgaged
to the respondent the suit property as security for a loan granted to
Bainebitamazire Mixed Farm Ltd. The husband and the applicant are
directors in the said company, and the applicant also serves as the
secretary. The mortgage deed was signed by the applicant as a
director/secretary of Bainebitamazire Mixed Farm Ltd. The applicant also
executed a personal guarantee for the loan advanced to Bainebitamazire
Mixed Farm Ltd.
3. The applicant has now come to this court for interim relief. She wants
this court to issue a temporary injunction restraining the respondent from
exercising the power of sale under that mortgage as the mortgage is
contended to be a nullity. All the 10 grounds set forth in the notice of motion
can be summarised to the effect that the applicant contends that the suit
property is the family home that cannot be mortgaged without the express
prior written consent of a spouse as provided under Section 39 of the Land
Act, before its amendment by the Land (Amendment) Act, 2004. As she did
not provide the prior written consent in a prescribed form, this mortgage is a
nullity.
4. It is now settled that that where a party seeks a temporary injunction
before determination of the main suit, that party must, firstly, show that it
has a prima facie case. Secondly that it stands to suffer irreparable loss
should the injunction not be granted. And in case of doubt, the matter can
be resolved on a balance of convenience.
5. In order to succeed on this application the applicant must
demonstrate that she has a prima facie case, or at least an arguable one. At
this stage, as no trial has taken place the court is not required to evaluate
the case in detail or assess at great length the probability of success of the
same. However, the court must be able to be satisfied that there is some
serious question to be investigated.
6. It is worth considering at this stage that in this case, as director and
secretary of the mortgagor, Bainebitamazire Mixed Farm Ltd, the applicant
was the actual ‘mind’ of the mortgagor, together with her husband, the other
director. She, in effect, together with her husband, was the mind that
mortgaged the suit property. Did she require any consent from herself as a
spouse to Bainebitamazire Mixed Farm Ltd or at all? I would think not but
perhaps this is a question that will be fully explored, argued and decided at
the trial of the main suit.
7. Nevertheless given that scenario I am unable to find that the
applicant has made out a prima facie case for the grant of a temporary
injunction. I find that this application has no merit whatsoever. I dismiss the
same with costs.
Signed, dated and delivered in Kampala this 19 th day of September 2007

FMS Egonda-Ntende
Judge

Tumwebaze v Mpeirwe & Anor (HCT-05-CV-CA-0039-2010) [2013]

UGHCLD 9 (8 February 2013);

INID TUMWEBAZE :::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

MPWEIRE STEPHEN & AN’OR. :::::::::::::::::::: RESPONDENTS

BEFORE: HON MR. JUSTICE BASHAIJA K ANDREW.

JUDGMENT

This appeal arises out of the decree in which Mpweire Stephen (herein
referred to as the “1 stRespondent) was adjudged as a judgement creditor and
Senkima John Bosco (hereinafterreferred to as the “2 nd”Respondent) as the
judgment debtor. When the suit property was attached and the sale done,
Inid Tumwebaze (herein after referred to as the “Appellant”) filed objector
proceedings before the Magistrate Grade 1 Court at Mbarara (hereinafter the
trial “court”) which she lost. She then filed the Miscellaneous Application
No.171-2010 for leave to appeal the decision of the trial court, which was
granted on the 17/9/2010, hence this appeal. Three grounds of appeal were
advanced as follows:

1. The learned Magistrate erred in law to hold that the sale of the
property was not illegal without taking into account the fact that
the dealing in the land ab initio was illegal.
2. The learned Magistrate erred in law to hold that the attachment
and sale of the property was not precluded or prevented by the
provisions of S.39 of the Land Act.
3. The learned Magistrate erred in law for ignoring the false
affidavits that were filed by the 1 stRespondent when the same was
pointed out to him.

Submissions.

Counsel for the Appellant, M/s. Mwene- Kahima, Mwebesa & Co. Advocates
submitted that the sale of the suit property was illegal and void ab initio.
Counsel relied on the case of Makula International Ltd v. His Eminence
Cardinal Nsubuga & A’nor[1982] HCB 11 where it was held that acourt of
law cannot sanction what is illegal and illegality once brought to the
attention of court overrides all questions of pleading, including any
admissions made thereon.

Counsel further cited the case of UTEX Industries Ltd v. Attorney

General, Supreme Court Civil Application No.52 of 1995, in which the
court held that rules of procedure are handmaids of justice, in that they
should be applied with due regard to the circumstances of each case; and
that in the circumstances of the instant case Order 22 r. 60 Civil
Procedure Rules(CPR) regarding objector proceedings should not be given
absolute application; not to mention that the attachment and sell of the
property is tainted with illegalities.

Counsel for the Appellant went on to submit that the pleadings of the
Respondent in the trial court clearly state that it is family land that was
attached as it had been mortgaged, or ( in alternative) that what was
attached was not family land because the attachment left out the
homestead. Counsel opined that whatever the case, under Section 39 of
the Land Act (Cap 227) such land is not subject of sale, and maintained
that the dealing in the family land was illegal ab initio.

In reply Counsel for the Respondents, M/s. Ahimbisibwe & Co. Advocates,
submitted that the appeal is incompetent, and that it should be dismissed
for being brought by the Appellant who was not a party to the original suit,
and that the objector has no right of appeal. To buttress this contention,
Counsel cited Order22 r. 60 CPR to the effect that where a claim or an
objection is preferred, the party against whom an order is made may
institute a suit to establish the right which he or she claims to be the
property in dispute, but subject to the result of the suit if any, the order
shall be conclusive.

Counsel further relied on Baku Rapheal & A’nor v.Attorney

General,Supreme Court Constitution Appeal No.1 of 2005, where
Mulenga J. S.C (R.I.P) held that there is no inherent right of appeal; and that
an appeal is a creature of statute. Counsel argued that the Appellant in this
case had no right of appeal, and that the property that was a subject of
attachment and the sale does not fall within the ambit of Section 39 of the
Land Act (supra).
Resolution.

It would appear that the central issue in this case; and which takes priority
in the resolution as a matter of law, is whether the suit land was family land
or not, and whether it was subject to provisions of Section 39 of the Land
Act(supra). This is so because the allegations of illegalities in the
transactions leading to the sale as put across by Counsel for the Appellant,
if proved to have existed would supersede any other issues.

The trial court pointed out (at page 2, in the 3 rdparagraph of its judgment)
that the Respondent annexed an inventory of the attached property, which
shows that the attached property had been partitioned from the homestead,
and went to hold (on page 2 paragraph 3 line 3(supra)) that prior to the
attachment, the attached property (banana plantation) and the homestead
were one. The trial court then cited Section 39 of the Land Act (supra)
which provides that:

(1) No person shall—

(a) sell, exchange, transfer, pledge, mortgage or lease any land;

(b) enter into any contract for the sale, exchange, transfer, pledging,

mortgage or lease of any land; or

(c) give away any land inter vivos, or enter into any other transaction
in respect of land—

(i) in the case of land on which the person ordinarily resides with his
or her spouse and from which they derive their sustenance, except
with the prior written consent of the spouse;
(ii) in the case of land on which a person ordinarily resides with his or
her dependent children of majority age, except with the prior written
consent of the dependent children of majority age;

(iii) in the case of land on which a person ordinarily resides with his
or her children below the age of the majority, except with the prior
written consent of the committee;

(iv) in the case of land on which ordinarily reside orphans below

majority age with interest in inheritance of the land, except with the
prior written consent of the committee.”

The trial court went further to state that by the application of usage of
phrases/words applied under S.39(supra), it is apparent that a sale of
family property pursuant to a court order is excluded. The trial court relied
on John T Mugambwa in his book; Principles of Land Law in
Uganda(Fountain Publishers, 2002) at page 38 where the author states
that Section 39 of the Land Act does not apply where it is sought to sell
family land in execution of a judgment debt against the land owner.

Applying the same principle to the instant case, trial court went on to hold
that the property the subject of the ruling was put to sale by M/s.Ankole
Speed Way Auctioneers pursuant to a warrant of attachment and sale issued
by the court on 7/4/2010. The trial court concluded by stating as follows:

“It appears that the attachment and subsequent sale of the attached
property was not precluded or prevented by the provisions of section
39 of the Land Act.”

With due respect, I find that the statement from John T Mugambwa’s book
(supra) was taken out of context by the trial court, in that it applies to a
situation where the property was not mortgaged, but only attached after a
judgment of court as a property of a judgment debtor. According to the facts
of the instant case, Ssenkima John Bosco, the husband to the Appellant,
pledged as security for money borrowed the property where he lived with his
spouse, Inid Tumwebaze (the Appellant) to Mpweirwe Steven. Senkima had,
however, not procured consent from; nor informed his spouse Inid
Tumwebaze. This act and / or omission evidently runs counter the spirit and
letter of Section 39(1)(c)(i) (supra)which categorically prohibits transactions
in such land as the one in question.

It is noted that the Respondent’s main contention is premised on the

position that by the time of the attachment the suit property had been
demarcated off the homestead; implying that the two were separate and that
the banana plantation could not be subject of spousal consent under
Section 39(supra). With due respect, this is a misreading of the provisions
of the law. Under sub-section(1) (c) (i)of Section 39(supra), it clearly
stipulated as follows:

“In the case of land on which the person ordinarily resides with his or
her spouse and from which they derive their sustenance, except with
the prior written consent of the spouse .”[Underlined for emphasis].

There is evidence on record of the trial court that family land in this case
included; not only the homestead but also the banana plantation on the land
upon which the homestead was. For all intents and purposes, this is land
where the 1stRespondent’s family ordinarily resided with his spouse and from
which they derived their sustenance. To argue that the banana plantation
had been demarcated from the homestead would be to defeat the stipulation
of “land on which the person ordinarily resides with his or her spouse
and from which they derive their sustenance”; for it is inconceivable that
a homestead without the banana plantation in this case would provide the
sustenance contemplated by the law. Therefore, even transacting in family
land on which the banana plantation was in this case would require spousal
consent as it formed part “of land on which the person ordinarily
resides”. Needless to emphasise that the said provisions of the law are
mandatory and cannot be circumvented.

Clearly, the whole dealing in the land was void ab initio for want of spousal
consent, and to that extent, the Respondent is precluded from hiding under
the argument that Section 39(supra) does not apply where it is sought to
sell family land in execution of a judgment debt against the land owner. The
law on illegalities well is settled. In the case of Makula International Ltd
(supra) cited by Counsel for the Appellant, it was held, inter alia, that:

“A court of law cannot sanction what is illegal, an illegality once

brought to the attention of court, overrides all questions of pleading,
including any admission made thereon.”

It is thus settled law that an illegality supersedes everything else raised by

the parties, even in the instant case.

It is also noted that the trial court (at page 3, in the 2 ndparagraph of its
ruling) made the following observation which, in my view, call for special
consideration:

“...The application was a waste of time since the property had already
been sold to bonafide purchaser.”

The implication here was, as it were, that let matters lie, since in any case
the attachment and sale have already been concluded. Counsel for the
Appellant submitted that this position lacks merit, and court should not
allow the status quo to continue, but that it can be rectified by an order of
this court.

The position of the law in such a situation where sale transactions, such as
the instant one, are tainted with illegalities was well articulated in the case
of Karooli Mubiru & 21 O’rs v.Edmond Kayiwa & 5 O’rs [1979] HCT
212. The Court of Appeal of Uganda held that:

“In any case, the fact that a judgment had been satisfied and
execution completed was not a good reason for not quashing a
judgment which was a nullity since an execution completed under
such a judgment was void ab initio.”

This court accordingly finds that the transaction that led to the sale of land
and the sale itself were illegal ab initio, and the orders of the trial court are
accordingly set aside. Since this is the central issue in the entire case, its
resolution disposes of all the other grounds. The appeal is allowed with costs
to the Appellant.

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

BASHAIJA K. ANDREW

JUDGE.

Florah Rwamarungu v DCFU Leasing Co. Ltd ((HCT-00-CC-MA-0436-

2007)) [2007] UGCOMMC 75 (19 September 2007);

BEFORE: THE HONOURABLE MR. JUSTICE FMS EGONDA-NTENDE

RULING

1. Florah Rwamarungu is the plaintiff in the head suit and the

applicant here. She is seeking a temporary injunction to restrain the
defendant from selling the suit property which was mortgaged to the
respondent by her husband, without her consent, as a spouse and yet,
the suit property, she contends, is the matrimonial home with her
husband, Mr. Yusuf Rwamarungu.
2. I shall set out the relevant portions of the affidavit sworn by the
applicant for ease of reference.
‘2. That I have been married for over 25 years to Yusuf Rwamarungu
and have established a matrimonial home in Kiruhura in land
comprised in Plot 2 Block 52 Folio 49 Vol 1113 Nyabushozi- Mbarara. (A
copy of the certificate of title is annexed hereto and marked ‘A’).
3. That the above property is our matrimonial home and family land
which we all derive sustainance especially farming and cattle keeping.
4. That sometime in August 2002 my husband obtained a loan in DFCU
and mortgaged our commercial property comprised in leasehold register
volume 2481 Folio 3 Plot 15 Ndibalema Road. (A copy of the mortgage
agreement is annexed and marked ‘B’) 5. That I gave consent for the
mortgage of the above property (see annexture ‘C’). 6. That later in
2004 my husband together with the respondent substituted the
mortgaged title of the commercial property in Mbarara with that of the
matrimonial home, land and farm comprised in Plot 2 Block 52 Folio 49
volume 1113 Nyabushozi Mbarara, without my knowledge, approval or
consent. 7. That my husband and respondent Bank entered into a
mortgage agreement on the 16 th of September 2004 in respect of the
matrimonial land and home which mortgage was not consented to by
me and as such is nul and void as it contravenes the law. (A copy of the
variation deeds is attached hereto and marked ‘D1’ and ‘D2’).
3. The respondent opposes this application and filed an affidavit in
reply in support of the respondent’s position. The affidavit asserts that
the claim that the suit property is the matrimonial home of the
applicant is false in so far as the applicant’s matrimonial home is Plot
15 Ndibarema Road, and reliance is placed on her own consent for the
mortgage of that property.
4. Secondly the respondents stated that the suit property had
already been sold to a third party following a warrant of attachment
issued by this court in HCT-00-CC-CS-0613-2005, Yusuf Rwamarungu v
DFCU Leasing Ltd.
5. It is now settled that that where a party seeks a temporary
injunction before determination of the main suit, that party must,
firstly, show that it has a prima facie case. Secondly that it stands to
suffer irreparable loss should the injunction not be granted. And in case
of doubt, the matter can be resolved on a balance of convenience.
6. In order to succeed on this application the applicant must
demonstrate that she has a prima facie case, or at least an arguable
one. At this stage, as no trial has taken place the court is not required
to evaluate the case in detail or assess at great length the probability of
success of the same. However, the court must be able to be satisfied
that there is some serious question to be investigated.
7. Section 39 of the Land Act (Chapter 227) as amended by the Land
(Amendment Act) 2004 bars, inter alia, mortgaging ‘family land’ without
consent of a spouse. Family land was substituted for the original phrase
in the Chapter 227 which referred to ‘any land’ or ‘land on which the
person ordinarily resides with his or her spouse and from which they
derive their sustenance’. The import of this change is yet to be clear.
And can only be addressed I suppose after a full trial of the matter, to
determine if the suit land is indeed the nature of land protected under
the provisions of the law.
8. Nevertheless the applicant describes this suit land variously as
the matrimonial home and land. But in the annexutre ‘C’ to her own
affidavit she describes another property, Plot 15 Ndibareema Road,
other the than the suit land, as the matrimonial home/residential
home. It is possible that a person or a family may have two matrimonial
homes but if that is the case, those homes must be described as such to
be understood as such.
9. In her affidavit in paragraph 6 she describes Plot 15 Ndibarema
Rod, as the commercial property in Mbarara, and not as the
matrimonial home/residence as described in annexture ‘C’ to her
affidavit. This is a serious contradiction. It may point to a deliberate
lie, leaving her credibility in question. But I suppose since the law now
protects family land, which may be more expansive, rather than a
matrimonial home, this may not be material. Even if it is not actually a
matrimonial home/residence, it may still be family land, and thus
protected. On the basis of that it is possible to find that a prima facie
case is made out.
10. However, what has not been shown is whether the applicant
would suffer any irreparable loss should the temporary injunction not
be granted. The applicant has alleged ,
‘12. That if the suit land is sold before the hearing of the main
application for injunction, I will suffer irreparable loss and damage as I
have no where else to go or take my family and no other source of
income apart from farming and cattle keeping.’
11. Loss of a source income does not in itself constitute irreparable
loss. By the nature of an income source, the stream of income following
from that source is quantifiable in monetary terms, and cannot be
‘irreparable’ in the sense that it cannot be atoned for by damages, since
it is capable of quantification, without more. The applicant alleges that
she has no where to go but I am not sure why. This in itself is not
sufficient to prove irreparable loss in any case. At the same time it
appears to be false, given the contents of Annexture C to the affidavit
she swore that indicates that she has a matrimonial home/residence at
Plot 15 Ndibarema Road, Mbarara.
12. I would find that this application has no merit for failure to
prove irreparable loss.
13. There is another matter that merits attention. During the
hearing of this application learned counsel appearing for the applicant
conceded that the sale had occurred but challenged the legality of the
sale, asserting that it was not in accordance with the court order in
that suit. I presume challenges to that sale will proceed in the proper
forum as in fact no challenge of that sale is raised before this court in
this proceeding. Nor could this court be able to deal with such challenge
on an application such as this application.
14. What is important to note is that this application seeks to
restrain a sale of the suit property but the sale has occurred. The
purpose of a temporary injunction is to maintain the status quo and not
to alter it. As the sale has occurred already, even though its legality
may be disputed, this application is coming too late. It cannot succeed
in the circumstances.
15. The applicant is of course free to pursue the main suit and
obtain such relief against the respondent or such other parties as she
may add to this action, as the law allows her.
16. This application is dismissed with costs.
Signed, dated and delivered this 20 th day of September 2007

Musisi v EDCO Ltd (M.A No. 386 Of 2013) [2013] UGHCLD 57 (7 June
2013);

MUSISI GABRIEL

Suing through his Lawful Attorney

CHARLES KYAGABA ::::::::::::: APPLICANT

VERSUS

1. EDCO LIMITED
2. GEORGE RAGUI KAMONI :::::::::: RESPONDENTS

RULING BY HON. MR. JUSTICE JOSEPH MURANGIRA

1.Introduction

a. The applicant through his lawyers Kabega, Bogezi & Bukenya

Advocates brought this application by Notice of Motion under
Section 80 (1) (d) and Section 98 of the Civil Procedure Act, Cap.
71 and Order 43, rule 22 of the Civil Procedure Rules, S.I. 71-1
against the two respondents, jointly or/and severally. This
application is supported by an affidavit by Charles Kyagaba, the
lawful attorney of the applicant.

1. The respondents are represented by Kimuli & Sozi Advocates. They filed
their arguments and an affidavit in reply and opposition to this
application. They vehemently opposed this application.

1. Parties’ arguments

1. Counsel for the applicant in his submissions and the authorities cited
submitted that this application is properly before this Court and that it
has merit. He prayed that this application be allowed with costs.

1. In reply Counsel for the respondents argued in his submissions that in

accordance with the authorities he cited, that there is no merit in the
 applicant’s application. He submitted, further, that the authorities cited
by Counsel for the applicant are not relevant to this application. He
prayed that this application be dismissed with costs.

1. Resolution of the matter by Court

The applicant brings the applicant seeking leave to amend the memorandum
of appeal to add the 3 grounds as indicated in the body of the notice of
motion relating to:-

1. The nature of the respondent company that is whether a Foreign

company (respondent) could hold mailo land?
2. The question whether the trial magistrate had jurisdiction to handle the
matter.
3. Whether the whole suit is not time barred in view of the provision of the
Limitation Act.

All the proposed grounds intended to be added were never urged during
hearing of the main suit but are all matters of law which can be raised at
any stage.

Order 43 rule 2 of Civil Procedure Rules permits a party to seek court’s

leave to argue a ground on appeal not initially included on the memorandum
of appeal in effect allowing an amendment of the memorandum of appeal.

Bowen L.J in Cropper vs Smith (1883) 26 CH D. 700 at page 711 noted “

it is well established principle that the objection of the Court is to
decided the right of the parties and not to punish them for mistakes
they make in the conduct of their cases by deciding otherwise than in
accordance with rights. I know of the no kind of error or mistake which
if not fraudulent or intended to over reach the court ought not to
correct if it can be done without injustice to the other party, courts do
not exist for the sake of discipline but for the sake of deciding matter
in controversy and I do not regard such amendment as a matter of
favour or greed….it seems to me that as soon as it appears that way in
which the party had framed his case will not lead to the decision of the
real matter in controversy, it is as much as matter of rights on his part
to have it corrected if it can be done without prejudice as anything else
is a matter of right”.

I entirely agree with the above decision and I hold that the case of Cropper
vs Smith (supra) is very relevant to this instant application.

The discretion to allow an amendment or not is a judicial one and not an

arbitrary exercise of the power. The circumstances under which the prayer
for amendment is to be allowed cannot be exhaustively enumerated. It
depends upon the facts of each individual case. But the principle is to do
substantial justice and not to punish the party on technical grounds.

The supreme Court while agreeing with Bowen L.J in its case of Gaso
Transport Services (Bus) Ltd vs Martin Adala Obene SCCA No. 4 of 1994
set the principles upon which the discretion may be exercised including:-

1. The amendment should not work injustice to the other side. An

injury which can be compensated by the award of costs is not
treated as an injustice.
 2. Multiplicity of proceedings should be avoided as far as possible and
all amendments which avoid such multiplicity should be allowed.
3. An application which is made malafide should not be granted.
4. No amendment should be allowed where it is expressly or impliedly
prohibited by any law “limitation of action”.

It is my considered view that the present application meets the test set for
Court to exercise its discretion for allowing the application. The 1 st
respondent in its affidavit in reply sworn by Messu Toure Mwaniki on 9 th
May, 2013 don’t indicate that an amendment would be prejudicial to them
and/or that the amendment is made malafide. Instead the applicant’s raised
fundamental matters of law pointing to glaring illegalities that were not
considered during hearing of the main case.

Its trite law that a matter of law can be brought up at any time and where
question of illegality is brought to the attention of Court, it override all other
considerations and Court cannot close its eyes but it is duty bound to
investigate such claims of illegalities as is the case.

Guiding principles in Court allowing fresh evidence on appeal include among

others:

1. Whether evidences upon which Court is asked to decide establishes

beyond doubt that the facts if fully investigated would have supported
the new plan see: Case of Tanganyika Farmers vs Unyamwezi [1960]
EA 620, where Goudl Ag. V.P. said:-

“the objection to this submission is that it raised a question which was

never in the contemption of the parties in the Court below it was not
argued there nor was it ever mentioned in the correspondences between
the parties. An appeal Court has discretion to allow a new point to be
taken on appeal but it will permit such course only when it is assured
that full justice can be done to the parties”.

I perused the annextures attached to this application particularly the plaint

(annexture “H1”) and noted that it is the appellant who filed a Civil Suit No.
384 of 2008 against the respondents in the Chief Magistrates Court of
Entebbe. In that instance, the appellant is the one who determined the
jurisdiction of the Court. In paragraph 9 of the plaint he stated:-

“Notice of intention to sue was communicated to the defendants and

the Court has jurisdiction to hear and determine this suit”.

Even the issue of jurisdiction was never argued in the lower Court. Thus, I
am of the considered opinion that the appellant/applicant cannot raise the
ground of jurisdiction at this stage. Hence the order being sought in 1 (b) of
this application is unattainable.

Further in appeal no. 52 of 2010 between the parties, in the memorandum

of appeal the appellant is aggrieved with the judgment and orders of the trial
magistrate dated 2 nd December, 2009. The appellant in the appeal is faulting
the trial magistrate on the intended grounds, which would be issued that
were never framed and argued by the parties before the trial magistrate. The
judgment of the trial magistrate did not address such grievances. Then how
can this Court fault the trial magistrates on anything which is not her
finding? Hence, the orders being sought in 1 (c), 2 and 3 in this application
in my view would be unattainable.
Consequent to the above, the memorandum of appeal which is to be
amended by the applicant was field on 14 th September, 2010, that’s ten (10)
months after the delivery of the judgment of the lower Court on 2 nd
December, 2009. To that extent the appeal would be affected by Order 43
rule 1 of the Civil Procedure Rules, S.I 71-1 and Section 79 (1) (a) of the Civil
Procedure Act, Cap. 71 which are to the effect that an appeal shall be filed in
the High Court within 30 (thirty) days from the date of the decision of the
decree or order. It appears to me, therefore, that the memorandum of appeal
in Civil Appeal no. 52 of 2010 cannot be amended.

However, under Order 43 rule 2 of the Civil Procedure Rules, S.I 71-1 a
party can argue grounds which were not included in the grounds of the
appeal.

1. Conclusion

To that extent and for the reasons given hereinabove in this ruling, this
application, Miscellaneous Application no. 386 of 2013, is allowed in the
terms of Order 43 rule 2 (supra) with costs in the cause.

Bull v Bull [1955]

Facts

 A mother and her son purchased a house, with the son contributing more
than the mother and the son becoming the sole legal owner
 It was agreed that the mother would occupy 2 rooms of the house only
 Following a disagreement, the son wished to have his mother leave the
house, and so sought to sell the house

Issue
 Could the mother occupy the house pending sale?

Decision

 Yes

Reasoning

 Property held on trust by the son for both himself and his mother
 Presumption of sale under the trusts for sale system, now replaced by the
trusts of land system, presumed sale
 Lord Denning – occupation was allowed by the mother pending sale – added
fairness to the trusts for sale system

The Administrator-General of Zanzibar v Khalfan Bin Ali Bin Mohamed

El-Battashy and others
[1963] 1 EA 230 (HCZ)
[1] Intestacy – Commorientes – Death of father and son in common calamity –
Father wounded first –
Son struck immediately afterwards – No evidence as to moment of death.

Editor’s Summary
The plaintiff took out an originating summons to determine whether a son had
survived his father. It was common ground that both died in a common
calamity when their house was attacked by a mob. The father was regarded as
an old man and blind, while his son was fourteen years old. A witness gave
evidence that the father left the house first, was slashed with sticks and bush
knives and fell to the ground bleeding. He was followed by his son who was
struck on his head but, although giddy from the blow, walked back into the
house. That was the last the witness saw of the son but she said she
considered the father was dead when she left “. . . because he was being
assaulted there”. There was no evidence when Hamoud died, though there was
no dispute that he did so as a result of injuries received from the mob. Counsel
for the defendants submitted that he had discharged the onus by proving that
the son was alivewhen the father was mortally wounded.

Held – the massacre was a common calamity in which the father and son did
not die simultaneously; but the court could not draw any inference that an
elderly blind man would struggle against death longer than a boy of fourteen
years or vice versa and it was impossible to say which survived the other.
Order accordingly.

Warren v Gurney and Another

Gifts inter vivos – Property bought by father – Conveyance in name of daughter –
Title deeds retained by father – Presumption of advancement – Claim by
daughter to be beneficial owner of property – Claim for possession of title deeds
against executors of father’s estate.
Evidence – Admissibility – Contemporaneous declarations of donor sufficient to
rebut presumption of advancement even if uncorroborated – Subsequent
declarations of donor only admissible when against his interest.

In 1929, the appellant, then a spinster, was engaged to be married to her

present husband. In that year her father bought a house, “Fairview,” and paid
£300 for
it. The conveyance was taken in the name of the appellant though the father
retained the title deeds which were still in his possession at the time of his
death,
which occurred in 1944. On 6 September 1943, the father signed a document,
headed “my wish” in which he gave directions respecting “Fairview” to the
effect that the property was to be divided between his three daughters. The
appellant claimed to be entitled as the owner of “Fairview” to the possession of
the
title deeds. The respondents, executors of the will of the appellant’s father,
denied that the appellant was the owner of “Fairview” and contended that she
was
a trustee of the property for her father. The county court judge, having
admitted the document headed “my wish” and having heard evidence of
witnesses as to
the declarations of the donor at the time when “Fairview” was bought, found for
the respondents. It was contended that the document headed “my wish” was
inadmissible and that the judge, on the admissible evidence, was not justified
in coming to the conclusion that the presumption of advancement was
rebutted:—

Held – (i) a document being in the nature of a subsequent declaration by the

alleged donor was only admissible if the declaration was against the donor’s
interest.
(ii) the contemporaneous declarations of the alleged donor were sufficient to
rebut the presumption of advancement, even if they stood alone.

Notes
It was observed by Knight Bruce VC, in Scawin v Scawin ((1841) 1 Y & C Ch
Cas 65), that the retention of title deeds by a father is not conclusive to rebut
the presumption of advancement arising from purchase of property in the
name of a child, although they are “sinews of the land,” in Coke’s words. Here,
however, there were contemporaneous declarations of the father which, taken
together with the retention of the deeds, are held sufficient to rebut the
presumption. Subsequent declarations leading to a contrary conclusion are, on
general principle, held inadmissible.
Tinsley v Milligan

TRUSTS
HOUSE OF LORDS

Trust and trustee – Constructive trust – Unmarried couple – House acquired by

joint efforts for joint benefit – Claim for beneficial interest in house –
Defence of illegality – House purchased jointly but registered in plaintiff’s sole
name to facilitate defendant’s fraudulent claims for social security benefit
– Plaintiff moving out leaving defendant in occupation – Plaintiff claiming
possession and asserting ownership of house – Defendant counterclaiming for
beneficial interest – Plaintiff raising defence of illegality to counterclaim –
Whether defendant entitled to beneficial interest notwithstanding fraudulent
purpose of registration of ownership – Whether plaintiff entitled to succeed under
resulting trust – Whether evidence of illegal purpose for registration
in plaintiff’s sole name rebutting presumption of resulting trust.

T and M, who were lovers, jointly purchased a house which was registered in
the name of T as the sole legal owner. The house was used as a lodging
house which was run as a joint business venture and provided most of the
parties’ income. Both parties accepted that the house was owned jointly but, as
M accepted, it was registered in the sole name of T to enable M, with the
knowledge and assent of T, to make false claims to the Department of Social
Security for benefits. The money so obtained was shared although it did not
form a substantial part of the parties’ income. After some years M told the
department what she had done, and thereafter continued to draw benefit
lawfully without prosecution. Subsequently, T and M quarrelled and T moved
out, M remaining in occupation. T brought an action claiming possession of the
house and asserting ownership of it. M counterclaimed for an order for
sale and a declaration that the house was held by T on trust for the parties in
equal shares. T contended in regard to the counterclaim (i) that, applying the
common law maxim ex turpi causa non oritur actio, M was barred from
denying T’s ownership of the house because the purpose of the arrangement
whereby the house had been registered in the sole name of T had been to
facilitate the fraud on the Department of Social Security and therefore her
claim
to joint ownership was tainted by illegality and (ii) that, applying the equitable
principle that he who came to equity had to come with clean hands, the
court ought to leave the estate to lie where it fell since the property had been
conveyed into the name of one party for a fraudulent purpose which had then
been carried out and in those circumstances the court ought not to enforce a
trust in favour of the other party. The judge dismissed T’s claim and gave
judgment for M on her counterclaim. T appealed to the Court of Appeal, which
dismissed the appeal, holding that when confronted with the defence of
illegality the court should adopt a flexible and pragmatic approach in applying
the maxim ex turpi causa non oritur actio and the equitable principle of
clean hands and should determine whether enforcement of the claim with its
attendant illegality would be an affront to the public conscience and that,
since both parties had collaborated in the fraud and both their claims were
tainted with illegality and it would be a disproportionate penalty to deprive M
of her share of the house, it would be an affront to the public conscience not to
grant her relief. T appealed to the House of Lords.

Held (Lord Keith and Lord Goff dissenting) – Where property interests were
acquired as a result of an illegal transaction a party to the illegality could
recover by virtue of a legal or equitable property interest if, but only if, he could
establish his title without relying on his own illegality even if it emerged
that the title on which he relied was acquired in the course of carrying through
an illegal transaction. Where the presumption of advancement applied, the
plaintiff was faced with the presumption of gift and therefore could not claim
under a resulting trust unless and until he rebutted the presumption of gift,
in which case he had to rely on the underlying illegality and would therefore
fail. However, where the presumption of a resulting trust applied, the
plaintiff would not have to rely on the illegality because, if he proved that the
property was vested in the defendant alone but that he had provided part of
the purchase money or voluntarily transferred the property to the defendant,
he would establish his claim under a resulting trust unless either the contrary
presumption of advancement displaced the presumption of resulting trust or
the defendant led evidence to rebut the presumption of resulting trust.
Therefore, in cases where the presumption of advancement did not apply, the
plaintiff could establish his equitable interest in the property without relying
in any way on the underlying illegal transaction. On the facts, M had
established a resulting trust by showing that she had contributed to the
purchase
price of the house and that there was a common understanding between her
and T that they owned the house equally. M had no need to allege or prove
why the house was conveyed into the name of T alone since that fact was
irrelevant to her claim, and, on the facts, M had raised a presumption of
resulting trust which was not rebutted by any evidence to the contrary. In
those circumstances M was entitled to succeed in her counterclaim. The appeal
would therefore be dismissed
Decision of the Court of Appeal [1992] 2 All ER 391 affirmed on other grounds.
Gatsinzi & Anor v Lwanga (CIVIL SUIT NO. 690 OF 2004) [2014] UGHCLD
29 (26 August 2014);

1. EDWARD GATSINZI
2. MUKASANGA RITAH ::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS

VERSUS

LWANGA STEVEN ::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT

BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW

J U D G M E N T:

Edward Gatsinzi and Mukasanga Ritah (hereinafter referred to as the

“Plaintiffs”) jointly brought this suit against Lwanga Steven (hereinafter
referred to as the “Defendant”) seeking orders of cancellation of the
Defendant’s names from the certificate of title for land comprised in Buruli
Block 219 Plot 2 (hereinafter referred to as the “suit land”); that they be
registered on the title to the suit land as Administrators of estate of late
Augustine Lwamulangwa, and costs of the suit.

The Plaintiffs initially on 21/09/2004 sued the Chief Registrar of Titles

jointly with one John Sekimpi; the latter from whom the Defendant claims to
derive interest in the suit land. On 18/09/2009 the Plaintiffs amended their
plaint and included one Sekitoleko Shaban then claiming to be the
representative of the estate of late John Sekimpi who by then had died. On
15/02/2012 the Plaintiffs yet again amended their plaint and dropped the
Chief Registrar of Titles and Sekitoleko Shaban and maintained Lwanga
Steven as the only Defendant who by then had become registered as
proprietor on the title to the suit land.
On 10/04/2012 the Defendant filed an amended written statement of
defence with a counterclaim seeking orders of eviction against the Plaintiffs
from the suit land and/or vacant possession, a permanent injunction
against the Plaintiffs or anybody claiming under them from any further acts
of trespass on the suit land, general damages and costs of the counterclaim.
On 03/05/2011 Counsel for the parties filed scheduling notes which were
adopted by court with two issues proposed by the Plaintiffs’ Counsel as
follows;

1. Whether the Plaintiffs are bona fide occupants on the suit land
2. Remedies available to the parties

The Defendant proposed four issues as follows:

1. Whether the plaint discloses a cause of action against the

Defendants.
2. Whether the Plaintiffs are bona fide occupants on the suit land.
3. Whether the 3 rd Defendant is a bona fide purchaser.
4. What are the remedies available to the parties?

Owing to the several amendments mentioned above, the parties again jointly
adopted the following issues at the trial;

1. Whether the Plaintiffs have an interest in the suit land.

2. Whether the Defendant is a bona fide purchaser.
3. What are the remedies available for the parties?

Background facts.

The Plaintiffs’ father one late Augustine Lwamulangwa on 02/07/1980 got

registered as proprietor on the certificate of title for land comprised in Buruli
Block 219 Plot 2. Together with his family, they had occupied the suit land
prior to his registration and utilized it for cultivation and grazing cattle. On
30/07/1991 Augustine Lwamulangwa died and he was buried on the suit
land. In 2004, one John Sekimpi started laying claim of ownership over the
suit land as Administrator for the estate of one late Salimini Kabalu who was
previously registered on the title in 1934 and died in 1960. John Sekimpi’s
lawyers M/s. Sengoba & Co. Advocates, in letter dated 19/05/1993 moved
the Chief Registrar of Titles under Section 178(a) of the Registration of
Titles Act to cancel Augustine Lwamulangwa’s entry from the title on
grounds that he was erroneously registered on the suit land, and that his
names should be removed to enable the children of Salimini Kabalu to
register their beneficial interest.

The Chief Registrar of Titles on 14/06/1993 issued notice to Augustine

Lwamulangwa, who by then was dead for about two years, stating that his
registration in 1980 was done in error and that his name would be cancelled
and Salimini Kabalu’s reinstated on the title. In the same notice the Chief
Registrar of Titles required Augustine Lwamulangwa to forward the duplicate
certificate of title to for scrutiny.

On 06/07/1993, M/s Kityo & Co. Advocates acting for the late Augustine
Lwamulangwa’s family responded to the notice informing the Chief Registrar
of Titles that Augustine Lwamulangwa died some years earlier, and that his
family members who were minors were in possession and physical
occupation of the suit land, and that the process of administering the
deceased’s estate had not yet been done. Further citing Section 59 of the
Registration of Titles Act, M/s Kityo & Co. Advocates warned the Chief
Registrar of Titles against the intended action without first obtaining a High
Court order. The Chief Registrar of Titles, nevertheless, on 20/12/1995
cancelled Augustine Lwamulangwa’s entry on the title in favour of the
Salimini Kabalu on the ground that the signature of the Land officer against
Augustine Lwamulangwa’s entry in the Register was forged by someone. The
Chief Registrar of Titles went on to register John Sekimpi the Administrator
of the estate of Salimini Kabalu vide Administration Cause No. 0129 of
2003 as proprietor on the title on 17/10/2003. John Sekimpi then sold the
suit land to the current Defendant who got registered on the title on
19/06/2008.

On 22/07/2004 the Plaintiffs who had become of age obtained Letters of

Administration for the estate of their late father Augustine Lwamulangwa
and on 21/09/2004 instituted this suit against the Chief Registrar of Titles
and John Sekimpi seeking, inter alia, for an order of cancellation of
Instrument No. BUK 53003 and No.57796 under which Salimini Kabalu was
re-entered on the title as proprietor and John Sekimpi as Administrator of
the estate respectively. The Plaintiffs further sought an order that the suit
land be transferred in their names as Administrators late Augustine
Lwamulangwa’s estate.

Evidence.

Gatsinzi Edward the 1 st Plaintiff (PW1) in his evidence more or less repeated
the above stated background facts. The Defendant for his part disputed the
Plaintiffs’ claims and adduced evidence of four witnesses. The main thrust of
his evidence is that the Defendant was approached by John Sekimpi the
then registered proprietor of the suit land who wanted to sell the same. The
Defendant proceeded to the suit land and found the family of one late
Mbwana who confirmed to him that there were no any other Kibanja holders
on the suit land and that the family of the Plaintiffs was and is still living on
the adjacent land belonging to one Mutina Nakanwagi.

Further, that the said family of late Mbwana had no objection to the
Defendant purchasing the suit land and promised to buy their Kibanja
interest in the land in future. That after confirming the names on the title
particulars and what was on the ground the Defendant purchased the suit
land and was later registered as proprietor on 19/06/2008. The Defendant
insisted that the Plaintiffs are resident on the neighboring land belonging to
the estate of late Mutina Nakanwagi, and that he had no knowledge of the
alleged or of any fraud or error in title of his predecessors, if any, as none
was brought to his attention, and that he did not personally participate in
the alleged fraud. The Defendant also denied that the Plaintiffs have any
gardens or graves of the suit land.

Submissions.

M/s Kiyemba & Matovu Advocates represented the Plaintiffs, and M/s
Ocheing. Harimwomugasho & Co. Advocates the Defendant. Both Counsel
filed written submissions to argue their clients’ respective cases. The
submissions are on court record and I am very thankful to both Counsel for
the same. I however need not reproduce the submissions in this judgment
but I will occasionally make specific reference to them as and when
necessary.

Resolution of issues:

Issue No. 1: Whether the Plaintiffs have an interest in the suit land.

The Plaintiffs claim interest in the suit land as Administrators of the estate
of their late father Augustine Lwamulangwa, vide Letters of Administration
(Exhibit P6). According to copies of the certificate of title (Exhibit P1and D1)
Augustine Lwamulangwa was registered as proprietor on the title on
02/07/1980. On 20/12/1995, however, the Chief Registrar of Titles
exercising powers under Section 178(a) Registration of Titles Act
cancelled Augustine Lwamulangwa’s entry and reinstated Salimini Kabalu
previously registered on the title on 26/01/1934 vide Instrument No. 24962.

The Chief Registrar of Titles was prompted to act by John Sekimpi the
Administrator to late Salimini Kabalu’s estate on grounds that the signature
of the Land officer against the entry of Augustine Lwamulangwa’s name on
the title was forged. John Sekimpi was then registered as proprietor on the
title on 17/10/2003 vide Instrument No. 57796, and in 2004 started
claiming ownership of the suit land from the Plaintiffs, who on 21/09/2004
instituted this suit against him. Evidence in Annexture G, (the Death
Certificate) and Annexture H (the L.C.1 letter of Kibaanda village then called
“RCs”) shows that John Sekimpi later died on 07/04/2008 and that the
Defendant was registered on the title on 19/06/2008 vide Instrument No.
BUK 82912.

Based on the above facts in evidence, the issue as to whether the Plaintiffs
have any interest in the suit land or not depends on whether their late father
Augustine Lwamulangwa himself had any lawful interest in the suit land
that could pass on to them as Administrators and /or beneficiaries or both,
as the case may be. This inevitably calls investigation into circumstances
under which Augustine Lwamulangwa’s entry on the title was cancelled.

Exhibit PI,and D1 copies of the certificate of title show that Augustine

Lwamulangwa was entered on the register on 02/07/1980 next after
Salimini Kabalu who was registered in 1934 and died in 1960. It is not clear
from evidence as to how and when the late Augustine Lwamulangwa came
on the suit land, but by the time of his registration in 1980 he had been in
occupation and use of the suit land for quite some time. It is also evident
that as at the time Lwamulangwa got registered in 1980 the title was still in
names of Salimini Kabalu.

The Chief Registrar of Titles on 20/12/1995 cancelled Augustine

Lwamulangwa’s entry on the title on grounds that the suit land was
erroneously registered in his names, and that the signature of one Muira
Kibirige an official of that Land office against the entry was forged by
someone. Chief Registrar of titles never indicated in the notice who had
committed the alleged forgery, but M/s Kityo & Co. Advocates acting for the
family of late Augustine Lwamulangwa responded to the notice and informed
the Chief Registrar of Titles that Augustine Lwamulangwa had died more
than a year earlier, and members of his family who were minors were in
possession of the land, and that the process of administration of the estate
had not yet been done. Also, that in view of Section 59 RTA (supra) the
Chief Registrar of Titles could only have recourse to the intended action by
obtaining an order of the High Court. However, on 20/12/1995, the Chief
Registrar of Titles proceeded to cancel Augustine Lwmaulangwa’s entry on
the Register and reinstated Salimini Kabalu’s names thereon.

The power of the Chief Registrar of Titles was provided for under Section 69
of the Registration of Titles Act (Cap 205) (1964 Edition) which was the
law in force at the time. The said section was repealed by Section 97 of the
Land Act, No. 16 of 1998, which provides as follows;

“The Registration of Titles Act is amended by repealing Section 69 and

paragraph (a) of Section 178.”

The provision was replaced by the current Section 91 of the Land Act
(Cap.227) which provides for the power of the Commissioner for Land
Registration (previously the Chief Registrar of Titles). The repealed Section
69 (supra) provides that;

“In case it appears to the satisfaction of the registrar that any

certificate of title or instrument has been issued in error or contains
any misdescription of land or boundaries, or that any entry or
endorsement has been made in error on any certificate of title or
instrument, entry or endorsement has been fraudulently or wrongfully
obtained or that any certificate of title or instrument is fraudulently
or wrongfully retained, he may in writing require the person to whom
such document has been so issued or by whom it has been so obtained
or is retained to deliver up the same for the purpose of being cancelled
or corrected or given to the proper party, as the case requires; and, in
case such person refuses or neglects to comply with such requisition,
the registrar may apply to the High Court to issue a summons for such
person to appear before such Court and show cause why such
certificate of title or instrument should not be delivered up for the
purpose aforesaid; and if such person when served with such summons
refuses or neglects to attend before such Court at the time therein
appointed, it shall be lawful for the Court to issue warrant
authorizing and directing the person so summoned to be apprehended
and brought before the Court for examination.”[Emphasis mine].

A careful reading of the provision reveals that the actions of the Chief
Registrar of Titles in the instant case were, with due respect, grossly
irregular, illegal, and done in utter disregard of the law.

Nowhere under Section 69 (supra) was the Chief Registrar of Titles

empowered to cancel an entry of any person on a title, even if the entry had
been erroneously or illegally or fraudulently and wrongfully procured
without first giving a hearing to the person to be affected by the decision.
The purpose of the notice was to summon the person to attend to the Chief
Registrar of titles, but the notice could not serve as or substitute the
requirement for a hearing. If the person failed or neglected to appear in
accordance with the notice, the Chief Registrar of Titles was required to
apply to the High Court to compel the person by summons to appear before
the Court and show cause why action should not be taken on the title. If the
person still failed or neglected to appear, the High Court would issue a
warrant of arrest against the person to be apprehended and be brought
before the Court for examination. The clear import of the provision is that
even where the High Court issued summons or warrant of arrest no
cancellation would be effected without first “examining” the person on his or
her entry on the title.
My findings are fortified by the fact that reference to the phrase
“fraudulently” was deliberately omitted by the Legislature from provision on
the powers of the Commissioner for Land Registration under the amending
Land Act, (supra) when fraud is alleged. It is trite law that where allegations
of fraud on title are made the burden lies on the person alleging the same to
file a suit in court for the cancellation of the entry. This is because, as was
held in the case of A.K. Detergents Ltd. v. G.M. Combine (U) Ltd. (1999)
KALR 536, the allegations of fraud are quite serious in nature and require
to be specifically pleaded and proved before a court of law beyond mere
balance of probability though not necessarily beyond reasonable doubt.
Needless to state that, fraud is not an “error” or “mistake” because it goes to
the root of the title and requires proof to the standard stated in A.K.
Detergents Ltd. v. G.M. Combine (u) Ltd case (supra) and the level of
adjudication that could be by the Chief Registrar of Titles. Recourse had to
be had to the High Court in all such cases where fraud was alleged.

In the instant case, if indeed the signature against the entry of Augustine
Lwamulangwa’s names on the title was forged, that would amount to fraud.
Since Augustine Lwamulangwa had not appeared as per the notice, it was a
requirement of the law under Section 69 (supra) for the Chief Registrar of
Titles to apply to the High Court to issue a summons for the defaulting party
to appear before the Court and show cause why his entry on the title should
not be cancelled. At no time was the Chief Registrar of Titles empowered to
take a unilateral decision to cancel an entry. Therefore, by cancelling
Augustine Lwamulangwa’s entry and re-entering names of Salimini Kabalu
on the title, the Chief Registrar of Titles acted ultra vires his statutory power,
which rendered his actions and decision null and void.

Another point to take note of is that by the time the Chief Registrar of Titles
issued the notice on 14/06/1993, Augustine Lwamulangwa then the
registered proprietor had died on 30/07/1991 more than a year earlier. This
fact was duly brought home to the Chief Registrar of Titles in a letter dated
06/07/1993 by M/s Kityo & Co. Advocates acting for the family of late
Lwamulangwa. The Chief Registrar of Titles was also put on notice that the
certificate of title was held subject to the provisions of Section 59 RTA
(supra) and that the intended cancellation could only be justified by an
order of the High Court.

Section 59 (supra) essentially provides for the indefeasibility of a certificate

of title and the registered proprietor as follows;

“No certificate of title issued upon an application to bring land under

this Act shall be impeached or defeasible by reason or on account of
any informality or irregularity in the application or in the proceedings
previous to the registration of the certificate, and every certificate of
title issued under this Act shall be received in all courts as evidence of
the particulars set forth in the certificate and of the entry of the
certificate in the Register Book, and shall be conclusive evidence that
the person named in the certificate as the proprietor of or having any
estate or interest in or power to appoint or dispose of the land
described in the certificate is seized or possessed of that estate or
interest or has that power.”

A registered proprietor of land is protected under Section 176 RTA

(supra) .The relevant part thereof states as follows;

“No action of ejectment or other action for the recovery of any land
shall lie or be sustained against the person registered as proprietor
under this Act, except in any of the following cases—

(a) ……………………………………………….;

(b) ………………………………………………..;
(c) the case of a person deprived of any land by fraud as against the
person registered as proprietor of that land through fraud or as
against a person deriving otherwise than as a transferee bona fide for
value from or through a person so registered through fraud;…”

When Section 69(supra) 59(supra) and 176(supra) are read together, they
leave no doubt that the Chief Registrar of Titles acted contrary to the law in
cancelling Augustine Lwamulangwa’s entry and substituting the names of
Salimini Kabalu on the title. The failure to comply with provisions of the law
meant that the Chief Registrar of Titles exercised power illegally with
material irregularity, which rendered his actions on the title null and void. It
was held Makula International Ltd. v. His Eminence Cardinal Nsubuga
& A’ nor [1982] HCB 11 that an illegality once brought to the attention of
court cannot be condoned.

Apart from the above, it also found that by taking a decision affecting rights
of the Plaintiffs without according them opportunity to be heard the Chief
Registrar of Titles exercised power improperly. This invariably violated the
cardinal principle of natural justice as relates to a fair hearing, and that a
party shall not be condemned unheard. It is settled that an administrative
body/person acts improperly and or illegally where it/he exercises its/his
power to decide a question without affording a party affected by the decision
an opportunity to be heard, or where the procedure adopted in dealing with
the dispute is contrary to principles of natural justice. See: Re: Musinguzi
Geoffrey and Kiruhura District Local Administration, HCT– 05 – CV –
MA – 193 – 2011 (unreported). It is also the trite law that a decision
reached by an administrative body/person which violates principles of
natural justice shall not be left to stand. See: See Sharp v. Welefield
(1981) A.C 173 which was relied upon in Re: Interdiction of Bukeni Fred
Misc. Appl.No. 139 of 1991, per Musoke – Kibuuka J.
The other fatal shortcoming in the decision to cancel Lwamulangwa’s entry
on the title is that the notice of cancellation was issued by of the Chief
Registrar of Titles more than a year after Augustine Lwamulangwa had died,
and the process of administering the estate had not yet begun - a fact that
was duly notified to the Chief Registrar of Titles. It meant that the estate, of
which the suit land was part, fell under Section 25 of the Succession Act
(Cap 162) and automatically devolved on the Administrator General as
representative of the deceased entitled to administer the property under the
law. For the purpose of the notice of cancellation, therefore, the
Administrator General was under Section 4 of the Administrator
General’s Act (Cap.153) legally the proper party imbued with the locus
standi to be heard in matters of the deceased’s estate.

It is, however, rather disturbing that the Chief Registrar of Titles did not find
it proper to redirect the notice to the Administrator General concerning the
suit land which at the time was part of the deceased’s estate. The failure
rendered the decision of the Chief Registrar affecting the title legally
ineffective, which also rendered the subsequent entries on the title
ineffective. It follows that the position of the Register of titles must be
restored to that obtaining as at 02/07/1980 before cancellation of Augustine
Lwamulangwa’s entry. This logically means that the Plaintiffs as
Administrators and beneficiaries of the estate of late Augustine
Lwamulangwa would have an interest in the suit land. Issue No. 1 is
answered in the affirmative.

Issue No. 2: Whether the Defendant is a bona fide purchaser.

In the case of Amratlal Purshottam & A’ nor v. Gian Singh Bhambra,

H.C.C.S. No. 289 of 2010 (Land Division) (Unreported) it was held that a
bona fide purchaser is one who buys property for value without notice of
another’s claim over the same property and without actual or constructive
notice of any defects in, or infirmities, claims, or equities against the seller’s
title; one who has in good faith paid valuable consideration for the property
without notice of prior adverse claims. Further, that to qualify as a bona
fide purchaser one must have done proper due diligence and exercised
reasonable caution before entering into a transaction that would ultimately
be binding upon him or her.

Similarly in the case of Haji Nasser Katende v.Vithalidas Halidas & Co.
Ltd, C.A.C.A. No. 84 of 2003 it was held that for a purchaser to rely on the
bona fide purchaser doctrine he must prove seven elements which are that
he holds a certificate of title, he purchased the property in good faith, he had
no knowledge of the fraud, he purchased for valuable consideration, the
vendor had apparent valid title, he purchased without notice of any fraud,
and he was not party to the fraud.

“Bona fide purchaser” is simply a common law doctrine that evolved as a

defence against allegation of fraud. In David Sejjaka Nalima v. Rebecca
Musoke, C.A.C.A. No. 12 of 1985 it was also held that before a purchaser
can claim protection as a bona fide purchaser without notice of the fraud
under Section 181of the RTA(supra) he or she must act in good faith, and if
he or she is guilty of fraud or sharp practice, that person ceases to be
innocent and therefore loses the protection.

To prove his claims as a bona fide purchaser, the Defendant led evidence
that he was approached by John Sekimpi to sell him land and that after
inspecting the land he purchased the same, but that no sale agreement was
ever made. The Defendant tendered in court an acknowledgement note dated
19/04/2007, Exhibit D2, for part payment of the purchase price for land in
Block 219 Plot No. 2 situate at Kakooge LC1 Zone Buruli –
Nakasongola, and testified that it is the only document he has that serves
as a sale agreement.
After carefully reading the said Exhibit D2, I find that it grossly contradicts
the Defendant’s testimony in all respects that no sale agreement was made.
The note in fact makes a specific reference to “a sale agreement” between the
parties made on 19/04/2007. The relevant extract of the note states;

“…which I have sold to him as per the Agreement of sale dated 19 th

April, 2007.” [Emphasis mine].

The contradiction remained unexplained as to whether it is the note that is

false or the Defendant’s testimony, but whichever the case, none helps the
Defendant’s case at all.

In the first instance, the note shows that Shs.5, 800,000/= supposedly
acknowledged by John Sekimpi was only part payment (installment) of the
purchase price for the suit land, but it does not state how much the
purchase price was or whether it was ever paid fully. In the second instance
it shows that Shs. 5,800,000/= was first installment of the purchase price of
the land “…as per the Sale Agreement of sale dated 19 th April, 2007”, yet the
Defendant maintained in his testimony that no such sale agreement exists
or was ever made at all.

These unexplained contradictions are so fundamental that they go to the

root of the matter. It means, inter alia, that there was no sale agreement
between the parties and as such there is no proof of the alleged sale. The
purported note simply makes reference to a nonexistent sale agreement and
it cannot be relied upon because it tells a lie about itself. The purchase price
remains unknown for some unknown reasons. As was held in Hussein
Juma v. Raphael Bwami, H.C.C.A N. DR. MFP6/1990, where sale of land
is involved the purchase cannot be by mere presumption. There must be
actual purchase with a written memorandum or note duly signed by the
parties and the failure to prove the same would render the said claim
baseless. Therefore, without proper proof of the sale the Defendant fails the
test as a bona fide purchaser.

The next issue relates to whether the Defendant was aware of the infirmities
and claim of the Plaintiffs in the suit land before he purportedly purchased
the same. It should be noted that the Defendant was added as party to the
suit on 18/09/2009 after he was registered on the title on 19/06/2009. In
his defence filed on 17/12/2009 he denied any knowledge of the Plaintiffs’
claims over the suit land and averred that he had nothing to put him on
notice of any adverse interest in the suit land, and that he is a bona fide
purchaser for value without notice of any encumbrance. He filed a
counterclaim and prayed for, among others, an order of eviction of the
Plaintiffs from the suit land and vacant possession.

By seeking orders of vacant possession and the eviction of the Plaintiffs from
the suit land in his counterclaim, in my view, it means that the Defendant
by implication acknowledged that Plaintiffs were in possession and physical
occupation of the suit land; a fact that the Defendant was or ought to have
been aware of before he purchased the land. Otherwise there would be no
need for him to seek orders to evict them from the land. That being the case,
the Plaintiffs’ physical presence should have reasonably put the Defendant
on notice and as part of his due diligence he should have inquired from them
what their interest was in the land before buying. It would appear that he
ignored this fact.

In the case of Nabanoba Desiranta & A’ nor v. Kayiwa Joseph & A’ nor,
H.C.C.S. No. 496 of 2005, Aweri Opio J (as he then was) quoting the case
of UP&TC v. Abraham Katumba [1997] IV KALR 103 held that as the law
now stands a person who purchases an estate which he knows to be in
occupation of another person other than the vendor is not a bona fide
purchaser without notice. Further relying on the case of Taylor v. Stibbert
[1803 – 1813] ALL ER 432 , the Learned Judge held that the defendant
failed to make reasonable inquiries of the persons in possession and as such
his ignorance or negligence formed particulars of fraud.

Applying the same principles to the instant case, the Defendant by his
conduct committed fraud which is directly attributable to him, and as such
loses protection as bona fide purchaser, which renders his title impeachable.

At the same time, I have failed find any relevance to the Defendant’s
reference to the adjacent piece of land belonging to one Mutinwa Nakanwagi
because it is a separate piece of land from the one the Plaintiffs are now
litigating about. The description of the suit land is succinctly clear in Exhibit
P1 and D1 copies of the certificate of title. If the Plaintiffs currently occupy
that particular piece of land, such ought to be a subject of a different case
altogether, but should not be used as a diversionary ploy against the real
claim of the Plaintiffs in the suit land in this case.

I further find that the Defendant fails the test of a bona fide purchaser owing
to the fact that by 2008 when the he purportedly purchased suit land, the
vendor John Sekimpi was already battling a court case with the Plaintiffs in
respect of the land. Court record shows that on 15/10/2008 the Court
issued an interim order restraining John Sekimpi “and his successors in
title” from trespassing, evicting or in any way dealing with the suit land. On
03/02/2009 when the lawyers of John Sekimpi sought to add the current
Defendant to the suit the Court further ordered that; “meanwhile the interim
order subsists.” The existence of the court case and the court orders relating
to ownership of the suit land are facts the Defendant was and or ought to
have been reasonably aware of if he carried out any due diligence at all. The
orders issued by court against John Sekimpi before the Defendant allegedly
bought the suit land bound the Defendant as well as Sekimpi’s “successor in
title.”
Court orders are orders in rem and are issued against the whole world. Court
orders are not issued in vain and they bind everybody whether they are
parties to the case or not in respect of the same subject matter of the suit.
See: Bashaija Kazoora John v. Bitekyerezo Medard &the Electoral
Commission, H.C. Election Petition No. HCT – 05 – CV – EP – 004 –
2004, per Bamugemereire J(unreported); Muriisa Nicholas v. Attorney
General & 3 O’rs , H.C. Misc. Appl. No. 035 of 2012(unreported). With
these observations, I find that the defence of bona fide purchaser is not
available to the Defendant in the circumstances.

The next aspect of Issue No.2 relates to whether the Defendant was
registered on the certificate of title through fraud, and if so whether the
fraud is attributable to him. The position of the law as relates to fraud is well
settled. In the case of Fredrick J. K. Zaabwe v. Orient Bank & 5 O’rs,
S.C. C.A No. 4 of 2006,(at page 28 of the lead judgment)Justice Katureebe
JSC, relied on the definition of fraud taken from Black’s Law Dictionary,
(6th Ed) at page 660 as follows;

“An intentional perversion of truth for purposes of inducing another in

reliance upon it to part with some valuable thing belonging to him or
to surrender a legal right. A false representation of a matter of fact,
whether by words or by conduct, by false or misleading allegations or
by concealment of that which deceives and is intended to deceive
another so that he shall act upon it to his legal injury. Anything
calculated to deceive, whether by a single act or combination or by
suppression of truth or suggestion of what is false, whether it is by
direct falsehood or innuendo by speech or silence, word of mouth or
look or gesture… A generic term embracing all multifarious means
which human ingenuity can devise and which are resorted to by one
individual to get advantage over another by false suggestion or by
suppression of truth and includes all surprise, trick, cunning
dissembling and any unfair way by which another is cheated. “Bad
faith” and fraud are synonymous and also synonymous of dishonesty,
infidelity, faithlessness, perfidy, unfairness etc. ..As distinguished
from negligence, it is always positive intentional. It comprises all acts,
omissions and concealments involving a breach of a legal or equitable
duty and resulting in damage to another. And includes anything
calculated to deceive whether it be a single act or combination of
circumstances, whether the suppression of truth or the suggestion of
what is false whether it be by direct falsehood or by innuendo by
speech, or by silence by word of mouth or by look or gesture.”

The above extensive definition, in my view, encapsulates all aspects of what

constitutes fraud. Further in the case of Kampala Battlers Ltd v.
Damanico (U) Ltd., S.C.C.A No. 22of 1992, Wambuzi, CJ (at page 5 of his
judgment) quoting the trial judge on the definition of fraud that stated that;

“It is well established that fraud means actual fraud or some act of
dishonesty.”

In the case of Waimiha Saw Milling Co. Ltd.v. Waione Timber Co. Ltd.
(1926) A.C 101 at page 106, it was held that fraud implies some act of
dishonesty. Also in Assets Co. v. Mere Roihi (1905) A.C 176, it was held
that fraud in actions seeking to affect a registered title means actual fraud,
dishonesty of some sort not what is called constructive fraud; an
unfortunate expression and one may opt to mislead, but often used for want
of a better term to denote transactions having consequences in equity
similar to those which flow from fraud. See also: David Sejjaaka v. Rebecca
Musoke, (supra).

Regarding the standard of proof in cases of fraud, it has been held that it is
slightly beyond balance of probabilities required in ordinary civil cases but
not beyond reasonable doubt as required in criminal cases. See: UNTA
Exports Ltd.v.Customas(1970) EA & Margaret Musango v.Francis
Musango [1970] HCB 226; Amama Mbabazi &A’ nor v. Musinguzi
Garuga James, Election Petition No. 12 of 2012; Ndaula Ronald v.
Hajji Nadduli Abdul, Election Petition Appeal No. 20 of 2001; Kampala
Bottlers Ltd. v. Damanico (U) Ltd.(supra).

The particulars of fraud as set out in paragraph 5 of the plaint against the
Defendant are the buying the suit land knowing of the Plaintiffs’ interest in
the same; transferring land into his names after dubiously removing the
caveat lodged thereon by the Plaintiffs; and purchasing the suit land well
knowing that the Plaintiffs were bona fide occupants of the same with a
pending court case. The Defendant for his part denied any knowledge of the
alleged or of any fraud or error in title of his predecessors, if any, as none
was brought to his attention. He also denied that he personally participated
in the alleged fraud.

Exhibit P1 and D1, copies of the certificate of title to the suit land show that
the Defendant got registered on the title on 19/06/2008 just over two
months after the death of John Sekimpi the vendor. Exhibit P7 and P8
respectively (proof of death) show that John Sekimpi died on 07/04/2008
and that he was buried on 08/04/2008. Entries on title go further to show
that the Defendant was registered directly after John Sekimpi with no other
intermediate person as the Administrator of John Sekimpi’s estate. This
raises serious questions as to the propriety and legality of the Defendant’s
registration on the title.

Section 191 of the Succession Act (supra) provides that;

“Except as hereafter provided, but subject to section 4 of the

Administrator General’s Act, no right to any part of the property of a
person who has died intestate shall be established in any court of
justice, unless letters of administration have first been granted by a
court of competent jurisdiction.”

In this case, as at the date of John Sekimpi’s death no other entries had
been made on the title in the names of the Defendant. Even assuming that
the Defendant had purchased the land prior to John Sekimpi’s death, only
equitable interest could pass to him, but legal title still remained in the
estate of late John Sekimpi. It was thus illegal for Defendant to have got
himself registered on the title for land that legally belonged to the estate of
the deceased with no evidence to show that any legal representative of late
John Sekimpi’s estate had effected such a transfer. Equally, it was illegal for
the Chief Registrar of Titles to have allowed the Defendant to deal in the
estate of a deceased person without first requiring production of Letters of
Administration.

I am acutely alive to the fact that an illegality does not necessarily amount to
fraud. However, where there is failure or omission to take an essential step,
as was in this case, fraud may be inferred. In this case John Sekimpi died
on 07/04/2008 which was known to the Defendant who nonetheless later
got himself registered on the title on 19/06/2008. This was an illegality in
the registration process directly attributable to the Defendant as purchaser
amounting to fraud. He actively participated in the fraud and has come to
court with unclean hands seeking to perpetuate the fraud and illegality
which he knowingly committed.

Regarding the particulars of fraud alleged that the Defendant dubiously

removed the caveat lodged on the suit land by the Plaintiffs; I have not found
any evidence that links the Defendant to that particular allegation. The
caveat was removed on 21/01/2007 which was much earlier before the
Defendant purportedly purchased the land from John Sekimpi on
19/06/2008.
The other issue that came out of the pleadings and evidence of both parties
concerns the law of limitation. By letter “Annexture B” dated 19/05/1993
from M/s.Sengoba & Co. Advocates to the Chief Registrar of Titles, John
Sekimpi sought to recover land on which the Plaintiffs’ father had been
registered for over twelve years from 02/07/1980 and was in possession and
physical occupation prior to his registration. Section 5 of the Limitation
Act (Cap. 80) provides that;

“No action shall be brought by any person to recover any land after the
expiration of twelve years from the date on which the right of action
accrued to him or her or, if it first accrued to some person through
whom he or she claims, to that person.”

Section 6(1) (supra) provides that;

“(1) Where the person bringing an action to recover land, or some

person through whom he or she claims, has been in possession of the
land, and has while entitled to it been dispossessed or discontinued
his or her possession, the right of action shall be deemed to have
accrued on the date of the dispossession or discontinuance.”

Given the position of the law cited above, it would follow that in May 1993
when John Sekimpi sought to recover the suit land purportedly belonging to
the estate of late Salimini Kabalu, who had been disposed of the same in
1980 when Augustine Lwamulangwa got registered thereon, the action was
barred by limitation. Similarly the Chief Registrar of Titles’ hands were tied
by the law of limitation and he ought not to have taken action to cancel the
entry of Augustine Lwamulangwa in 1995 or to re-enter Salimini Kabalu on
the title.

John Sekimpi’s letter to the Chief Registrar of Titles to cancel

Lwamulangwa’s entry on the title amounted to “action” to recover land
within the meaning of Section 1(1) (a) of the Limitation Act (supra).
Statutes of limitations are by their nature strict and inflexible enactments.
They are not concerned with the merits. Once the axe falls, it falls, and the
party who takes benefit of the limitation would of course insist on his or her
strict right under the statute. See: Vincent Rule Opio v. Attorney General,
[1990-1991] KALR 68; Onesiforo Bamuwayira & 2 Or’s v. Attorney
General (1973) HCB 87; Hilton v.Satton Steam Laundry [1946] IKB 61
at page 81. It would follow then that the reinstatement of Salimini Kabalu’s
names on the Register was caught up by limitation, and John Sekimpi as
Administrator of the estate legally had no title in the land to pass to the
Defendant.

Accordingly, the Plaintiffs have proved their claim to the required standard.
The Defendant has failed to prove his claim in the counterclaim. It is
declared and ordered as follows;

1. Judgment is entered in favour of the Plaintiffs.

2. It is declared that the Plaintiffs are bona fide occupants of the
land comprised in Buruli Block 219 Plot 2.
3. The Commissioner for Land Registration is directed to register the
Plaintiffs as Administrators of the Estate of Late Augustine
Lwamulangwa.
4. The Defendant’s counterclaim is dismissed with costs to the
Plaintiffs.
5. The Defendant’s Certificate of Title for Buruli Block 219 Plot 2 is
hereby cancelled
6. A permanent injunction is issued against the Defendant or his
agents, and servants from evicting the Plaintiffs from the suit
land.
7. The Plaintiffs are awarded costs of the suit.
BASHAIJA K. ANDREW

Advocates Coalition For Development & Environment & 4 Ors V

Attorney General & Anor ((Constitutional Petition No. 14 Of 2011))
[2011] UGCC 11 (15 November 2011);

BETWEEN

1. ADVOCATES COALITION FOR

DEVELOPMENT AND ENVIRONMENT
2. HON. ATIM A. O. BEATRICE PETITIONERS
3. ACTION AID UGANDA
4. FORUM FOR WOMEN IN DEMOCRACY
5. CENTRE FOR PUBLIC INTEREST LAW

AND
1.
ATTORNEY GENERAL RESPONDENTS
2. THE PARLIAMENTARY COMMISSION

CORAM : HON. JUSTICE A.E.N.MPAGI-BAHIGEINE, DCJ;

HON. JUSTICE S.B.K.KAVUMA, JA;
HON. JUSTICE A.S.NSHIMYE, JA
HON. JUSTICE M.S.ARACH AMOKO, JA;
HON. JUSTICE REMMY KASULE, JA;

JUDGEMENT OF THE COURT

INTRODUCTION:

This petition is brought under Article 137(3)(b) of the Constitution, the

Constitutional Court (Petitions and References) Rules, S.I No. 91 of 2005
and all the other enabling laws.

It was brought by Advocates Coalition for Development and Environment,

Hon. Atim A.O Beatrice, Action Aid Uganda, Forum For Women In
Democracy and the Centre For Public Interest Law, (hereinafter individually
referred to as the 1 st, 2nd, 3rd, 4th and 5th Petitioners respectively and together
as the petitioners).

In the Petition, the petitioners variously describe themselves as hereunder:-

1.
The 1st, 4th and 5th Petitioners are companies limited by guarantee engaged
in and carrying out independent public policy research and advocacy,
capacity building and lobbying to ensure respect for human rights, good
governance, transparency and accountability in the conduct of the public
affairs of the State of Uganda.
2 The 2nd Petitioner was a member of the 8 th Parliament representing the
Women of Kitgum District.
3. The 3rd Petitioner is a Non-Governmental Organisation duly registered
under the laws of Uganda and with objectives and carrying on activities
similar to those of the 1 st, 4th and 5th Petitioners.
4. The 1st Respondent is sued in its representative and constitutional
capacity representing the Government of Uganda.
5. The second Respondent is a body Corporate established under section
2(3) of the Administration of Parliament Act, Cap. 257 of the laws of Uganda
with power to sue and be sued in its name.
The Petitioners make the following averments:-

(i) That the petitioners have a constitutional and civic duty to defend and
uphold the Constitution of Uganda and prevent wastage of public resources
in accordance with Objective No.XXIX of the National Objectives and
Directive Principles of State Policy and Article 17 of the Constitution.
(ii) That the Executive and Legislative arms of government, represented by
the respondents in this petition, are bestowed with public trust to, inter alia,
manage public resources and run the affairs of the State of Uganda in
accordance with the Constitution and the wishes and aspirations of the
people of Uganda.
(iii) That in January 2010, the respondents, without the authority of any
law or motion of Parliament, caused to be paid to each member of
Parliament a total sum of Uganda Shillings 20, 000, 000/= to monitor
government programmes.
(iv) That the said payment was done in total disregard of Articles 1(1), (2),
8A, 85(1) and 2, 154 (1) (a) and ( b), 154 (2), 159, 164 , 90(1), (2) - (4) and
94 and Objective Principles of State Policy Nos. XXVI and XX1X of the
Constitution of Uganda and was neither appropriated nor made under any
enabling law and was an interference with the independence and autonomy
of Parliament and was made contrary to its Rules of Procedure.
(v) That the legislative duty of monitoring government programs is not a
function of an individual member of Parliament but rather, a duty executed
through Committees of Parliament as provided for under Articles 90 (1) –
(4) and 94 of the Constitution and Part XXVI of the Rules of Procedure of
the Parliament of Uganda.
(vi) That payment by the 1 st and 2nd Respondents of the sum of Ushs. 20
(Twenty) million to each member of Parliament and a total sum of Ushs 6.2
bn (Six billion Two Hundred Million), without authorization is a breach of
trust and a violation of the sovereignty of the people of Uganda and is
inconsistent with and/or in contravention of Objective XXVI of the National
Objectives and Directive Principles of State Policy and Article 1, 2, 8A
and 164 of the Constitution.
(vii) That the act of receiving, using and/or refusing to return the said
unlawful and unconstitutional payment by members of Parliament is an
abuse of the public trust bestowed upon them and a negation of their duties
to prevent wastage of public resources and is, therefore, inconsistent with
and in contravention of Articles 1, 17(1) (i) and 164(2) and (3) of the
Constitution.

The petitioners seek the following declarations:

a) A declaration that the acts of the 1 st and 2nd Respondents of approving

and paying to each individual member of Parliament a sum of 20,000,000/=
is inconsistent with and in contravention of Articles 1(1), (2) and (3), 85(1)
and (2), 154(1) (a) and (b) and 154(2) of the Constitution of Uganda.
b) A declaration that the act of paying members of Parliament by the
Respondents to monitor government programmes is in contravention of
Articles 1, 79, 90(1), (2) and (3) of the Constitution and the Rules of
Procedure made pursuant to the provisions of Article 90(3) of the
Constitution.

The petitioners seek orders that:

a) The 1st and 2nd Respondent recover the Shs. 6.2 billion paid out to the
members of Parliament in January 2011 and refund the same to the
Consolidated Fund within one month from the date of judgment.
b) The Respondents be restrained from making payments to members of
Parliament without following the provisions of the Constitution and the
relevant laws.
The Petition is accompanied by the affidavits in support sworn by Mr.
Godber W. Tumushabe, that by the 2 nd Petitioner together with her affidavit
in rebuttal and her further supplementary affidavit in rebuttal of the
respondents’ affidavits. Further affidavits in support of the petition are from
Hon. Nabila Nagayi Sempala, and Hon. Erias Lukwago, both members of the
8th Parliament.

These affidavits basically narrate the background of the petition and amplify
the averments of the petitioners.

The answers to the petition filed by the respondents are accompanied by

affidavits sworn by the Clerk to Parliament, the Secretary to the Treasury
and Ms. Eva Kabundu, a State Attorney at the 1 st respondent’s Chambers.

The respondents contend that the acts of the respondents complained of by

the petitioners are neither inconsistent with nor in contravention of any of
the Articles of the Constitution cited by the Petitioners or any other law.
They contend, further, that the Petitioners are not entitled to the
declarations and the orders they seek from court.

Theissues:
There are four agreed issues, namely:
i) Whether the act of authorization, withdrawal and payment to each
Member of Parliament a sum of Shs.20m was in contravention of
Articles 1(1)(2) and (3), 79, 85 (1) and (2), 154(1), (2), (3) and 164 (2) of
the Constitution.
ii) Whether the act of paying individual members of Parliament to
monitor Government programmes is inconsistent with Articles 79,
85(1), and (2) of the Constitution and the Rules of procedure of
Parliament made pursuant to Article 90(3) in as far as the duties of
members of Parliament and the Committees of the House are
concerned.
iii) Whether the act of receiving and using the said payment by
Members of Parliament is an abuse of public trust bestowed upon them
and a negation of their duties to prevent waste of public resources and
therefore inconsistent with and in contravention of Articles 1, 17(1)(i),
164 (2) and (3) of the Constitution.
iv) Whether the parties are entitled to the reliefs sought.

Representation:
At the hearing of the petition, learned counsel Muhumuza Kaahwa, Francis
Tumusiime, Francis Gimara and Nicholas Opio represented the petitioners
while Mr. Henry Oluka, Principal State Attorney assisted by Mr. Daniel
Gantungo, State Attorney represented the 1 st respondent and Ms. Stina
Cherotich appeared for the 2 nd Respondent.

The case for the Petitioners.

Issue 1:
Arguing issue one, counsel for the Petitioners submitted that emoluments
and such other facilities of Members of Parliament are determined by
Parliament under Article 85, not the Minister of Finance and Speaker of
Parliament. According to them, the budget of Parliament for the financial
year 2010/2011 had no funds from which the members of Parliament could
be facilitated to monitor government programmes. Counsel further
submitted that Articles 154(3) and (4) prohibit withdrawal of money from
the Consolidated Fund which is not authorized by law. Counsel cited Section
16 of the Public Finance and Accountability Act, and Regulations 38 and 39
made under that Act. Counsel prayed court to find in the affirmative on this
issue.
Issue 2:
Arguing issue two, counsel for the petitioners submitted that the functions
of Parliament are provided for by Article 79(1) and that Article 90 of the
Constitution provides for and empowers Committees of Parliament, under
Rules 133 and 161(d) to monitor government programmes. He further
submitted that members of Parliament are not experts on National
Agricultural Advisory Services, (NAADS) and that Article 90(3) pre-supposes
the non-expert nature of Parliament. He contended that MPs could not,
therefore, monitor government programmes. He also submitted that MPs
already have a hefty-package of allowances for carrying out their activities.
Concluding this issue, counsel submitted that at the time of the payment,
the members of Parliament were busy campaigning and had only three
months left to the end of their term of office and as such had no time to
monitor NAADS and other government programmes. He asked court to find
in the affirmative on this issue.

Issues 3 and 4:
On issues 3 and 4, counsel for the Petitioners submitted that the payment
by the respondents and receipt by each member of Parliament of Shs. 20m
was a breach of public trust contrary to Articles 1, 164 and 8A and
Objective 26 of the National Objectives and Directive Principles of State
Policy of the Constitution. He submitted that the Shs.20m was paid without
guidelines and Terms of Reference. He further submitted that Public Trust is
a fudiciary duty between the governor and the governed in accordance with
Article 1 (3) of the Constitution. He contended that when leaders misuse
public funds, they must refund the same as provided for under Article
164(2) of the Constitution. He pointed out that Article 164(3) provides that
Parliament shall monitor all public expenditure.
Counsel submitted that the Shs 20m paid to each member of Parliament was
taxed yet allowances to monitor government programmes should not be
taxed. He further submitted that this payment was wrongly frontloaded from
the 4th to the 2 nd quarter of the Financial Year 2010/2011. Counsel prayed
Court to find in the affirmative on these issues and grant the petitioners the
reliefs they sought.

The case for the respondents:

Issue 1
Submitting for the 1 st Respondent, Mr. Henry Oluka stated that it was the
case of the respondents that the acts of authorization, withdrawal and
payment of the Shs 20m to each member of Parliament were not in
contravention of Articles 1, (2), (3), 79, 85(1), 154(1)(2) and (3) and 164(2)
of the Constitution. Counsel submitted that Article 79 (1) gives Parliament
power to make laws for the good governance of Uganda. Some of the laws
that Parliament made are the Public Finance Act, No. 6 of 2003 and the
Administration of Parliament Act, Cap 257 of the Laws of Uganda. The
administration of Parliament, counsel pointed out, is undertaken by the
Parliamentary Commission established under Article 87A of the
Constitution. He submitted, further, that under S4(1) (b) of the Public
Finance and Accountability Act, the Minister of Finance Considers requests
for money from the Consolidated Fund as she did for the Shs 20m the
subject of this petition.

Counsel further submitted that the Speaker, as the head of Parliament and
Chairman of the Parliamentary Commission is empowered to make financial
estimates on expenditure under Section 6(f) of Cap 257. To counsel, the
Speaker was not wrong to consult with the Minister of Finance who, under
Section 3 (b) of the Public Finance and Accountability Act, 2003, supervises
and monitors the public finances of Uganda. He, further still, submitted that
it was not illegal for the Speaker to request for additional funding to
facilitate members of Parliament to monitor government programmes and
that this did not amount to contravention of Article 1(1)(2) and (3) of the
Constitution. It was not an infringement of Article 79 either. The money
paid out to the members of Parliament was part of emoluments or allowance
covered by Article 85 of the Constitution. Counsel contended, further, that
the payment of Shs 20m to each member of the 8 th Parliament was
consistent with all the articles of the Constitution set out in issue one and
was neither a contravention of the Administration of Parliament, the Public
Finance and Accountability and the Appropriation2010/2011 Acts as well as
the Regulations made under the Public Accountability Act.
He prayed Court to find in favour of the respondents on issue one.

Issue 2
With regard to issue two, counsel for the 1 st Respondent submitted that the
payment of Shs. 20m to each member of the 8 th Parliament to monitor
government programmes was neither inconsistent with nor in contravention
of Articles 79 and 85 of the Constitution or any of the Rules of Procedure of
Parliament. He contended that as elected representatives of the people,
members of Parliament are the agents of development for those very people
they represent and as such, had the interest and duty to monitor
government programmes in their constituencies.

Counsel contended that the oversight function of Parliamentary Committees

over the Executive neither prohibits nor replaces the individual member of
Parliament’s function and duty to monitor government programmes.
Emphasizing that the people have a right to development, counsel submitted
that provisions relating thereto in the Constitution must be expansively
interpreted looking at the Constitution as a whole. He prayed court to find
that the payment of the Shs 20m to each member of the 8 th Parliament was
consistent with Articles 79 and 85 of the Constitution.

Issue 3:
On this issue, counsel submitted that the payments made to the members of
Parliament totaling to Shs. 6.2bn were embodied in the estimates of
allowances of members of Parliament as per annexture “A2” to the affidavit
in rebuttal of the 2 nd petitioner. Counsel contended that his submissions on
issues 1 and 2 showed that the actions of the Speaker, Clerk to Parliament,
Secretary to the Treasury and the Minister of Finance were all consistent
with the Constitution and the relevant enabling laws and, therefore, they did
not breach the duty to prevent wastage of public resources.

Issue 4:
Regarding issue four, counsel submitted that the petitioners are not entitled
to any of the remedies, reliefs declarations and orders they sought and that
their petition had no merit. He prayed court to disallow the issue and
dismiss the petition with costs.

Arguing the case for the 2 nd respondent, her counsel fully associated herself
with the submissions of counsel for the 1 st respondent and added that
members of Parliament are elected individually in their constituencies and
are, therefore, answerable to their constituents individually. She contended
that it was a misconception for the petitioners to argue that the function of
monitoring government programmes was limited to Committees of
Parliament only since Article 90 does not state anywhere that members of
Parliament have no role, individually or otherwise, to monitor government
programmes.
She further submitted that the doctrine of the Separation Of Powers
enshrined in the Constitution is intended to avoid unnecessary interference
by one arm of government in the functions of the others. He referred court to
the case of Attorney General vs Maj. Gen. David Tinyefunza Supreme
Court Constitutional Appeal No.1 of 1997.

Counsel contended that MPs were elected by the people as their

representatives and therefore any decision of Parliament is the decision of
the People. She pointed out that Parliament enacted the Appropriation Act,
2010/2011, which incorporated the budget estimates of the Parliamentary
Commission. She emphasized that payments made under that Act are legal
and not unconstitutional and that those payments needed no further
Parliamentary approval. Counsel concluded by praying that the petition be
dismissed with costs.

Reply by the petitioners

Counsel for the petitioners submitted, by way of reply, that it was the case of
the petitioners that everything done was wrongly done.

On the separation of powers, counsel submitted that there were procedures

that were not followed and court can inquire into this under Article 137 (3)
(b) of the Constitution. Counsel invited Court to consider the case of
Patricia McKenna vs An Taoiseach and Others (No. 2) [SC Nos. 361 and
366 of 1995] Ireland.

Principles of constitutional interpretation:

We consider the following to be the relevant principles of constitutional
interpretation on the matter before Court.
(1) The principles which govern the construction of statutes also apply to the
construction of constitutional provisions. (The Republic vs EL Mann (1969)
E.A 357.)
(i)
The widest construction possible in its context should be given according to
the ordinary meaning of the words used, and each general word should be
held to extend to all ancillary and subsidiary matters. In certain context, a
liberal interpretation of the constitutional provision may be called for.
(ii)
A constitutional provision containing a fundamental right is a permanent
provision intended to cater for all times to come and therefore, should be
given a dynamic progressive and liberal flexible interpretation, keeping in
mind the ideals of the people and their social economic and political-cultural
values so as to extend fully the benefit of the right to those it is intended for.
(South Dakota vs. North Carolina, 192, US 268 1940 LED 448.)
(iii) The entire Constitution has to be read together as an integrated whole
and with no one particular provision destroying the other, but rather each
sustaining the other. This is the rule of harmony, completeness and
exhaustiveness and the rule of paramouncy of the written Constitution.
(Paul K. Ssemogerere and 2 others vs. AG Supreme Court Constitutional
Appeal No. 1 of 2002)
(iv)
No one provision of the Constitution is to be segregated from the others and
be considered alone, but, all provisions bearing upon a particular subject
are to be brought into view and be interpreted as to effectuate the greater
purpose of the instrument.
(v)
Judicial power is derived from the people and shall be exercised by courts
established under the Constitution in the name of the people and in
conformity with the law and with the values, norms and aspirations of the
people and courts shall administer substantive justice without undue regard
to technicalities (Article 126(1) and (2) (e) of the Constitution of Uganda,
1995.)
(vi)
The Constitution is the Supreme law of the land and forms the standard
upon which all other laws are judged. Any law that is inconsistent or in
contravention of the Constitution is null and void to the extent of the
inconsistency. (Article 2(1) and (2) of the Uganda Constitution, 1995)
(vii)
Fundamental rights and freedoms guaranteed under the Constitution are to
be interpreted having general regard to evolving standards of human dignity.
See also the case of Uganda Law Society vs. Attorney General
Constitutional Petition No. 18 of 2005.

Court’s consideration of the issues

Keeping in mind the above principles, we shall now proceed to consider the
framed issues.

Issue 1:
The gist of issue one is the Petitioner’s complaint that the acts of
authorization, withdrawal and payment of Shs. 20m to each member of the
8th Parliament was unconstitutional by reason of being inconsistent with and
in contravention of Articles 1(1), (2) and (3), 79, 85(1) and (2), 154 (1), (2)
and (3) and 164 (2) of the Constitution.
Article 1 provides:
“Article (1) All power belongs to the people who shall exercise their
sovereignty in accordance with this Constitution.
(2) Without limiting the effect of clause (1) of this article, all
authority in the State emanates from the people of Uganda; and the
people shall be governed through their will and consent.
(3) All power and authority of Government and its organs derive
from this Constitution, which in turn derives its authority from the
people who consent to be governed in accordance with this
Constitution.
(4) ………………………………………………………………………………………...”

Article 79 provides:
“Article 79 (1) Subject to the provisions of this Constitution,
Parliament shall have power to make laws on any matter for the peace,
order, development and good governance of Uganda.
(2) Except as provided in this Constitution, no person or body other
than Parliament shall have power to make provisions having the force
of law in Uganda except under authority conferred by an Act of
Parliament.
(3) Parliament shall protect this Constitution and promote the
democratic governance of Uganda.”

Article 85 provides:
“Article 85 (1) A member of Parliament shall be paid such emoluments,
such gratuity and pension, and shall be provided with such facilities, as
may be determined by Parliament.
(2) A member of Parliament shall not hold any office of profit or
emolument likely to compromise his or her office.”

Article 154 provides:

“Article 154 (1) No monies shall be withdrawn from the Consolidated
Fund except—
(a)
to meet expenditure charged on the fund by this Constitution or
by an Act of Parliament; or
(b) where the issue of those monies has been authorized by an
Appropriation Act, a Supplementary Appropriation Act or as provided
under clause (4) of this Article.
(2) No monies shall be withdrawn from any public fund of Uganda other
than the Consolidated Fund, unless the issue of those monies has been
authorised by law.
(3) No monies shall be withdrawn from the Consolidated Fund unless
the withdrawal has been approved by the Auditor General and in the
manner prescribed by Parliament.
(1)
……………………………………………………………………………..
(2)
………………………………………………………………………………………..
(a)
……………………………………………………
(b) …………………………………………………..”

Article 164 (2) provides:

“Article 164(1) ………………………………………………………………………
(2) Any person holding a political or public office who directs or
concurs in the use of public funds contrary to existing instructions
shall be accountable for any loss arising from that use and shall be
required to make good the loss even if he or she has ceased to hold that
office.”

We note that Parliament, duly elected by the people of Uganda, enacted the
Administration of Parliament Act, Cap 257 of the Laws of Uganda, the
Appropriation Act 2010/2011 and the Public Finance and Accountability
Act, Act 6 of 2003, all of them pursuant to Article 79 of the Constitution.
A need for additional funds for members of the 8 th Parliament to monitor
government programmes was identified. The Speaker of Parliament, as
Chairperson of the Parliamentary Commission and acting together with the
other authorized officers of the Commission, who included the Commission
Secretary, initiated the process of procuring the needed funds from the
Ministry of Finance. Prior to that, the Parliamentary Commission, according
to the evidence on record, had considered the money it needed for its
operations in the Financial Year (FY), 2010/2011 and submitted it to
Parliament. Parliament approved the same as part of the Appropriation Act
2010 – 2011 under programme 2 with a total of Shs. 59 bn. See Annexture
“A2” to the affidavit in rebuttal of Hon Atim Anywar Odwongo Beatrice, the
2nd Petitioner. This annexture clearly shows at page 24 the said approved
amount of Shs. 59bn which amount included, among other funds, money for
members of Parliament’s salaries and allowances. It is thus an established
fact that the money, the subject of this petition had already been approved
and voted by Parliament to be used as salaries and allowances by members
of Parliament in the FY 2010/2011. What happened was that this already
voted for and allocated amount of Shs. 6.2 bn, was accessed by Parliament
by frontloading the same from the 4 th to the 2nd quarter of the FY
2010/2011. This was done after obtaining the approval of the relevant
authority in the Ministry of Finance Planning and Economic Development.

The Ministry of Finance gave its approval acting under the powers conferred
on it under Regulation (Reg.) 39 of the Public Finance and Accountability
Regulations, which provides:
Regulation 39 Virements or re-allocations within a vote.
“39 (1) The Minister has discretionary powers to vary the amount
allocated within a vote, provided that—
a)
the total amount authorized by Parliament for that vote in an
Appropriation Act is not exceeded;
b) the variation is not so large or important as to represent a
change in policy;
c) the changes made are not novel or contentious; and
d) any virements made will from the outset not involve heavy
liabilities in future years.
(1)
The power of the Minister to vary the amount allocated within a vote
may be delegated in writing to the Secretary to the Treasury or
accounting officer.
(2) All virements within a vote shall be the subject of an application
for virement addressed to the Secretary to the Treasury and copied to
the Accountant General and the Auditor General—
a)
showing the amounts involved;
b) identifying the items where extra provision is required;
c) identifying, where appropriate, any delegated authority for the
re-allocation;
d) giving appropriate explanation for the shortfall in the original
provision;
e) clearly identifying the items with the anticipated savings; and
f) giving appropriate explanations and the reasons for the savings
being available.
(3)
In order to ensure that the savings identified are genuine, items from
which funds have been transferred will no longer be eligible for the
provision of additional funds by a Supplementary Appropriation Act or
subsequent virements.
(4) In the absence of delegated authority, applications for virement
shall be submitted by the Secretary to the Treasury for consideration by
the Minister, and no such application will be approved by the Secretary
to the Treasury without the specific authority of the Minister.
(5) On approval of an application under sub regulation (5) of this
Regulation, a warrant for virement within a vote shall be issued to the
accounting officer concerned and copied to the Accountant General;
and on receipt of his or her copy of the warrant, the Accountant
General may, where necessary, issue an amended accounting warrant to
the accounting officer reducing the amount authorized on the item
which has had its available funds reduced.
(6) Expenditure on the item which has had its available funds
increased by the accounting warrant shall at all times remain within
the limits of any accounting warrant currently in force.

The Ministry did not go by way of approval of a supplementary under Reg.

38 for, this was not necessary since there was enough money to cover the
item of the expenditure sought from the already approved amount.
Regulation 38 was, therefore irrelevant to the procurement of the money the
subject of this Petition.

In his affidavit, the Secretary to the Treasury elaborately explained the whole
process in the following terms:

On the 23rd of November 2010, the Clerk to Parliament wrote to the Hon.
Minister of Finance requesting for a supplementary funding of Ug.Sh. 6.54
billion to enable him pay members of Parliament allowances for purposes of
monitoring government programmes. The Clerk to Parliament was reacting
to the Rt. Hon. Speaker’s letter dated 23 rd November 2010 on the same
subject. On the 24 th November 2010 the Hon. Minister of Finance replied to
the Clerk to Parliament informing him that due to pressures being exerted
on the budget at that time, it was not possible to issue a supplementary as
requested. Consequently, the Minister advised the Clerk to reallocate within
the available Parliamentary annual balances for the FY 2010/2011 to meet
the required expenditure. Pursuant to that advice, the Clerk to Parliament
wrote to the Secretary to the Treasury confirming that the allowances for
Members of Parliament on which supplementary funds were required had
enough balances to cover the necessary expenditure required subject to
such funds being frontloaded from the forth to the second quarter of the
financial year and that all he had to do was to adjust the recurrent cash
limit for the second quarter by the amount required and frontload the
budgeted fund by the same amount. This meant that there was no need for a
supplementary budget or approval of Parliament for those funds since the
item, allowances for Members of Parliament, had already been approved in
2010/2011 FY. It only required the permission of the Secretary to the
Treasury to allow Parliament to spend amounts in allowances budgeted for
in the second quarter, which they would have spent, under normal
circumstances, in the 4 th quarter of the FY 2010/2011.

This Court received further uncontroverted evidence of the Secretary to the

Treasury that in compliance with Regulation 39, he authorized the
frontloading of the money from the fourth to the second quarter.

We are satisfied, on the evidenced before us that the Minister of Finance and
Economic Development, who is mandated by the Constitution and the law to
supervise and monitor the public finances of Uganda under S.3 (b) of the
Public Finance and Accountability Act, the Speaker of Parliament who,
under S.2(4) of the Administration of Parliament Act, is the Chairperson of
the Parliamentary Commission, the Secretary to the Treasury and the Clerk
to Parliament, all acted in accordance with the law in the process that led to
the authorization, withdrawal and payment of Shs. 20m to each member of
the 8th Parliament.

In as far as the payments in issue were made in accordance with laws duly
enacted by Parliament, we are not persuaded that the acts complained of by
the Petitioners in this Petition in any way contravened Article 79 of the
Constitution. By enacting the Appropriation Act 2010/2011, Parliament
approved the payments in issue in the Petition in strict compliance with
Article 85 of the Constitution. There was, therefore, no need for further
Parliamentary approval by resolution or otherwise.

Similarly, we find that the payment was done in compliance with Article
154 of the Constitution since the same was effected under laws duly enacted
by Parliament and with all the requisite approvals. Therefore, no money
relevant to this petition was withdrawn from the Consolidated Fund without
Parliamentary approval.

Article 164 deals with Accountability regarding public funds and 164 (2)
specifically provides for accountability by any person holding a political or
public office who, unlawfully, causes loss of public funds by requiring
him/her to make good such loss. The Shs. 20m paid out to and received by
each of the members of the 8 th Parliament was part of the funds approved for
use by Parliament under programme 2 as indicated above. We are convinced
that the Accounting Officers acted within the mandate emanating from
Regulation 39 (supra).

We, therefore, find that the acts of authorizing, withdrawal and payment of
Shs. 20m to each of the member of the 8 th Parliament were neither
inconsistent nor in contravention of Articles 1(1), (2) and (3), 79, 85 (1)
and (2), 154 (1) (2) and (3) and 164(2) of the Constitution. We, therefore,
find in the negative on this issue.

Issue 2:
The gist of issue 2 is the petitioner’s complaint that the act of paying
individual members of Parliament to monitor government programmes was
inconsistent with Articles 79, 85 (1) and (2) of the Constitution and the
Rules of Procedure of Parliament made pursuant to Article 90(3) of the
Constitution. To the petitioners, the function of monitoring government
programmes was the sole preserve of Parliamentary Committees.

We have already dealt with Articles 79 and 85 of the Constitution in so far

as they related to the payments of the money the subject of this petition in
our resolution of issue one. We need not repeat that here.
Article 90 provides:
“Article 90 Committees of Parliament
(1)
Parliament shall appoint committees necessary for the efficient
discharge of its functions.
(2) Parliament shall, by its rules of procedure, prescribe the powers,
composition and functions of its committees.

Article 94, which we find relevant to the Rules of Procedure of

Parliamentary Committee provides:

“Article 94(1) Subject to the provisions of this Constitution,

Parliament may make rules to regulate its own procedure, including the
procedure of its committees.

We have carefully considered Article 164 (3) of the Constitution, Rules 90,
94, 133 and 161 of the Rules of Procedure of Parliament. By virtue of Article
164 (3), Parliament is empowered to monitor all expenditure of public funds.
In our view, monitoring government expenditure does not stop at examining
papers at the Public Accounts Committee meetings only or indeed at any
other Parliamentary Committee. It includes following the money to the
ground where it is alleged to have been spent.

There is nothing in the Constitution or indeed in any other law or any of the
said Rules of Procedure of Parliament that prohibits a member of
Parliament, individually or otherwise, from monitoring government
programmes in his/her constituency. In addition to this, we hold the view
that the overall functions of Parliament under Article 79 of the Constitution
of making laws on any matter for peace, order, development and good
governance of Uganda, read together with Article 164(3) are inclusive,
rather than exclusive, of the responsibility of an individual member of
Parliament carrying out a monitoring role in addition to other bodies or
persons in that member’s constituency.

Further, we accept as correct the submission by counsel for the respondents

that the members of Parliament are individually agents of development in
their respective constituencies with interest and duty to individually monitor
government programmes. This is good sense. We also note from the evidence
before us that the Shs. 20m paid to each member of the 8 th Parliament was
for monitoring government expenditure on all government programmes on
the ground and not (NAADS) only.

We observe that the timing of the payment may appear unsuitable but, that
notwithstanding, no constitutional provision was breached in our considered
view. It may also be true that not all members of the 8 th Parliament may
have been experts in certain disciplines but they were the owners of those
programmes together with their Constituents. It is then not farfetched to say
that they could competently monitor, even if only politically, what was on the
ground in their respective constituencies regarding government programmes.

We note the submission by counsel for the 2 nd respondent to the effect that
under the doctrine of the Separation of Powers this Court should not
question the acts of approval, withdrawal and payment of the money, the
subject of this petition, by the 1 st and 2nd respondents and of the receipt and
utilization of the same by the members of the 8 th Parliament who received
and used it. This Court is acutely alive to the operation of the said doctrine
of the Separation of Powers as expounded by the Supreme Court in
Attorney General vs. Maj. General David Tinyefunza (supra). We however,
do not accept the said submission by counsel for the 2 nd respondent. This
Court has not exceeded the parameters set in the cited case in considering
the matters raised in this petition. It has acted within its jurisdiction under
Article 137 of the Constitution.

Counsel for the petitioners also contended that it was erroneous for the Shs.
20m paid to each Member of the 8 th Parliament to have been taxed. The
Court is not in the instant petition concerned with how taxes are deducted
and remitted to taxing authorities. This does not have a direct bearing on
the principle under Courts’ consideration. We, therefore, find in the negative
on issue two.

Issue 3:
The gist in issue 3 is the complaint by the petitioners that the acts of
receiving and using Shs. 20m by each of the member of the 8 th Parliament
was an abuse of public trust bestowed upon them and a negation of their
duties to prevent waste of public resources in contravention of Articles 1,
8A, 17(1) (i), 164(2) and (3) of the Constitution.
Article 17 provides:
“Article 17 Duties of a Citizen.
(1)
It is the duty of every citizen of Uganda—

“Article 8 (A)
(1) Uganda shall be governed based on principles of
national interest and common good enshrined in the
national objectives and directive principles of state
policy.
(2) Parliament shall make relevant laws for purposes of
giving full effect to clause (1) of this Article.”
Objective No. (XXVI) of the National objectives of State Policy provides:

“XXVI (i) All public offices shall be held in trust for the people.
(ii) All persons placed in positions of leadership and responsibility
shall, in their work, be answerable to the people.
(iii) All lawful measures shall be taken to expose, combat and
eradicate corruption and abuse or misuse of power by those holding
political and other public offices.”

We have already shown in this judgment in our resolution of issues one and
two above how the payments made to the members of the 8 th Parliament
were lawfully made with all the required approvals. We have no evidence that
any of that money was used by any of the recipients of the same in a way
that amounted to abuse of public trust bestowed by the Constitution on
those members of Parliament or indeed on any other public official.
Similarly, no satisfactory evidence has been adduced to Court to show that
that money was used by any of its recipients in a way that amounted to a
negation of the duty of any of such a Member of Parliament to prevent
wastage of public resources in contravention of any of the Constitutional
Provisions cited. It is trite law that Courts of law act on credible evidence
adduced before them and do not indulge in conjecture, speculation,
attractive reasoning or fanciful theories. See Okale vs Republic 1965 EA
555, Kanalusasi vs Uganda [1998 – 1990] HCB and Silaagi Buroro Gordon
vs Uganda Court of Appeal Criminal Appeal No. 122/2005, (unreported).

We, therefore, find that the act of receiving and using the Shs. 20m paid to
each of the members of the 8 th Parliament by those who chose to use it, was
not an abuse of public trust bestowed upon those members of Parliament. It
was not a negation of their duty to prevent waste of public resources or
corruption either. It was, therefore, not in contravention of Articles 1, 17 (1)
(i), 164 (2) and (3) and National Objectives and Direct Principles of State
Policy Nos XXVI and XXVII of the Constitution.

We, consequently, find in the negative on this issue too.

Issue 4
Issue 4 is about the reliefs sought by the petitioners. Having held as we
have, on issues 1 to 3, we find that the petitioners are not entitled to any of
the remedies, reliefs and declarations sought and we decline to grant any.

In the result, this petition fails and is dismissed for lack of merit.
Each party shall bear their own costs.

Dated at Kampala this…16 th …..day of …November....2011

………………………………………………………….
A.E.N.MPAGI-BAHIGEINE
DEPUTY CHIEF JUSTICE/PRESIDENT CONSTITUTIONAL COURT
……………………………………………….………
S.B.K.KAVUMA
JUSTICE OF APPEAL/CONSTITUTIONAL COURT
………………………………………………………
A.S.NSHIMYE
JUSTICE OF APPEAL/CONSTITUTIONAL COURT

Carolyne Turyatemba & 4 Ors Vs Attorney General & anor ((CONST

PETITION NO 15 OF 2006)) [2011] UGCA 6 (8 August 2011);

1. CAROLINE TURYATEMBA
2. ALLEN ELWANA OKIROR
3. OGWANG RICHARD ::::::::::::::::::::: PETITIONERS
4. EPHRAIM BYAMUKAMA
5. BARHAM BANYENZAKI

VERSUS
1.
THE ATTORNEY GENERAL
2. UGANDA LAND COMMISSION :::::::::::::::::::::RESPONDENTS

CORAM: HON. LADY JUSTICE A.E.N. MPAGI BAHIGEINE, DCJ

HON. LADY JUSTICE C.K. BYAMUGISHA, JA
HON. MR. JUSTICE S.B.K. KAVUMA, JA
HON. MR. JUSTICE A.S. NSHIMYE, JA
HON. MR. JUSTICE REMMY KASULE, JA

JUDGEMENT OF THE COURT.

Introduction:
The petitioners instituted this constitutional petition against both
respondents pursuant to Article 137 of the Constitution, and The
Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992.
Each of the petitioners is a parishioner of All Saints Cathedral, Church of
Uganda. The petitioners bring the petition on their own and also on behalf of
the parishioners of All Saints Cathedral parish.

The petitioners assert that the acts of the respondents of allocating and
granting ownership of particular lands, in the neighbourhood of All Saints
Cathedral to third parties, to the exclusion of the petitioners, infringe some
of their fundamental human rights in contravention of the Constitution.
They thus seek remedies by reason thereof.

The lands, the subject of the petition, are first, the land comprised in plots
7-9 Lugard Road, and plot 2 Akii Bua Road, Nakasero, Kampala City,
referred to as the “UBC Land”, previously occupied and used by Uganda
Broadcasting Corporation (UBC) of Ministry of Information, Uganda
Government. Second: the Land referred to in the petition as “Mutineer Valley
Park”, now, developed with residential apartments. Third: the Land
comprised in plot 4 Lugard Road, Kampala City, now allocated to and owned
by one William Nkemba. The said lands shall be referred to in this Judgment
as the “UBC Land”, “Mutineer Valley Park” and “Nkemba Plot”
respectively. They shall also be collectively described as the “suit lands”.

The petitioners contend that as early as August 2001, the Church of

Uganda, to which the All Saints Cathedral parish belongs, approached the
Government of Uganda requesting for securing more lands bordering and
neighbouring land currently occupied by All Saints Cathedral, Nakasero. The
Government gave no positive response to the request. The church was, in
fact, informed that, for historical reasons, the Mutineer Valley Park land was
unavailable.

Later, the petitioners learnt that the UBC land had been allocated to AYA
INVESTMENTS (U) LIMITED, a company incorporated on 25.01.06, Mutineer
Valley Park to one “AMINA” and the Nkemba plot to a Mr. William Nkemba,
all private developers.

The above allocations, according to the petitioners, were done without any
consideration of the long standing, demonstrated and urgent interests of the
Church of Uganda in the said lands.

The petitioners contend that, the allocation of the said suit lands, without
consideration of the interests of All Saints Cathedral parish, amounted to
discrimination of the petitioners and other parishioners of All Saints
Cathedral parish, in violation of Article 21 of the Constitution, which
guarantees equality in all spheres of political, economic, social and cultural
life.

Further, by denying the Church of Uganda the opportunity to acquire

further land, the respondents denied the petitioners and other All Saints
Cathedral parishioners, the freedom to practice their religion, contrary to the
constitutional right to practice, profess, maintain and promote their religion.

By reason of the above, the petitioners prayed this court for declarations
that:
(i)
the allocation of the suit lands to other allocatees, other than the Church of
Uganda, was discriminatory and therefore inconsistent with Article 21(1) and
(2) of the constitution,
(ii) the change of user of the suit lands by the respondents, breached the
petitioners’ rights to practice, manifest, enjoy, profess, maintain and
promote their religion and was therefore inconsistent with Articles 29(1) (c)
and 37 of the constitution,
(iii) the maintenance of the fencing off of road reserves of Akii Bua Road
and Kyaggwe Road and the blockage of Kyaggwe Road, which are part of the
suit lands, was discriminatory of the petitioners and other fellow
parishioners of All Saints Cathedral parish. The act also breached their
rights to practice, manifest, enjoy, profess, maintain and promote their
religion, thus being inconsistent with Articles 21(1) and (2), 29(1) (c) and 37
of the constitution.
The petitioners also prayed for orders that:
(i)
the leases and certificates of title issued to the allocatee of each of the suit
lands be cancelled.
(ii) the allocation and lease process regarding each of the suit lands be
undertaken de novo in a manner strictly consistent with the constitution.
(iii) the fencing off of the suit lands comprising the road reserves of Akii
Bua Road and Kyaggwe Road and the blockades along Kyaggwe Road be
reversed.
The respondents deny the petitioners allegations. They aver that the
allocation of the suit lands to the respective third parties and the fencing off
of public areas in the suit lands, did not contravene Articles 21(1)(2), 29(1)
(c) and 37 of the constitution. The change of user of any of the suit lands
was also not in contravention of the constitution.

To the respondents, the petitioners did not and do not have any legal and
enforceable interest in the suit lands.

The respondents also further contended that the petition was incompetent,
because its supporting affidavit was incurably defective and also the petition
sought orders that affected the rights of third parties, who were not parties
to the petition.
Representation:
At the hearing of the petition, the petitioners were represented by learned
counsel Andrew Kibaya of Messrs Shonubi, Musoke & Co, Advocates, while
learned State Attorney Gantungo Daniel of the Attorney General’s Chambers,
represented both respondents.

The issues:
The following issues were framed for due determination:
1.
Whether or not, the affidavit of the second petitioner, Allen Elwana
Okiror, filed in support of the petition, is incurably defective and ought
to be struck out.
2. Whether or not, the petition is incompetent in as far as it seeks
orders and declarations against persons who are not parties to the
petition.
3. Whether or not, the allocation of “the suit lands” to other third
parties, other than the Church of Uganda, to which All Saints Cathedral
parish belongs, breached the petitioners’ right to practice, manifest,
enjoy, profess, maintain and promote the petitioners’ religion as
parishioners of All Saints Cathedral parish, and therefore was
inconsistent with Article 37 of the Constitution of Uganda.
4. Whether or not, the allocation, change of user and grant of leases
of the suit lands to third parties, other than the Church of Uganda, was
discriminatory and thus inconsistent with Article 21(1) and (2) of the
Constitution of Uganda.
5. Whether or not the petitioners are entitled to the remedies
sought in the petition.
The case for the Petitioners:
Issue No.1:
The petitioners maintained that the affidavit of the second petitioner, Allen
Elwana Okiror, in support of the petition, was not defective. The petition was
thus not in any way defective and/or incompetent.
Issue No.2
Petitioners submitted that the petition disclosed issues for constitutional
interpretation between the petitioners and the respondents, as it set out the
acts and/or omissions complained of, pointed out the provisions of the
constitution stated to have been breached, and then sought remedies of
declarations and orders. It was immaterial that the allocatees of the various
suit lands were not parties to the petition.
Issue No.3:
In respect of this issue, the petitioners asserted that, the respective acts of
allocation, change of user and grant of leases to other third parties of the
suit lands, violated their constitutional right to practice and manifest their
religion contrary to Article 29(1) of the Constitution. Further, their right to
belong, enjoy, practice, profess, maintain and promote their religion in
community with others was also violated contrary to Article 37 of the
Constitution.
The contravention of Articles 21, 29 and 37 of the Constitution by the
respondents, to the prejudice of the petitioners, as parishioners of All Saints
Cathedral parish, was constituted by the following acts:
(i)
The Church of Uganda had expressly demonstrated interest to acquire the
suit lands, or part of it, for development purposes. Yet the church’s
applications for the said lands had not been responded to by the
respondents, and thus, the church had been deprived of the option to
acquire and develop the said lands.
(ii) The suit lands had subsequently been allocated by the respondents to
third parties, without the church being involved in the process, or being
consulted, or being given the opportunity to acquire the same or part
thereof.
(iii) The parishioners of All Saints Cathedral parish used the area of the
suit lands for parking motor-vehicles near State House. The respondents
subsequently fenced off this land, so that, the parishioners were no longer
able to use it for parking purposes. This resulted in the parishioners not
having sufficient area where to park when professing their religion at All
saints Cathedral parish. This was in contravention of the Constitution.
(iv) The change of user of the suit lands, without taking into account, the
long standing interests of the Church in the said lands, was contrary to the
Constitution.
The above respondents’ acts denied and curtailed the petitioners and other
parishioners of All Saints Cathedral parish, their rights to enjoy, practice,
profess, maintain and promote their religion contrary to Articles 29(1) (c)
and 37 of the Constitution.

Issue No.4:
The petitioners contended as regards this issue, that when the respondents
allocated the suit lands to the third parties, to the exclusion of Church of
Uganda, this amounted to discrimination against the petitioners and
parishioners of All Saints Cathedral parish. The respondents acted so
without any consultation or involving the Church of Uganda. This was
contrary to Article 21(1) and (3) of the Constitution that provides that all
persons are equal before the law in the spheres of political, economic, social
and cultural life.

The petitioners’ counsel thus prayed that the petition be allowed, and the
petitioners be granted the remedies prayed for.
The case for the respondents:
Issue No.1:
The respondents submitted that the affidavit of the 2 nd petitioner, Allen
Elwana Okiror, was incurably defective as it contained hearsay evidence in
the nature of a newspaper article. The same affidavit also failed to disclose
the source of information the deponent relied on and also did not distinguish
paragraphs based on belief and those based on personal knowledge. The
affidavit was also argumentative.

Relying on Supreme Court Civil Appeal No.1 of 1997: Attorney General V

Major General David Tinyefunza, and Constitutional Petition No.3 of
1999: Paulo Ssemogerere & Another vs Attorney General; and also
Order 19 Rule 3 of the Civil Procedure Rules, the respondents submitted
that the whole petition was incompetent by reason of the defective
supporting affidavit of the 2 nd petitioner.
Issue No.2.
The respondents’ submission was that, in as far as the petition sought
orders and declarations, including those for cancelling leases and
certificates of titles belonging to third parties, who were not parties to the
petition, then the same was incompetent. It ought to be struck out.
Issue No.3:
The respondents’ stand was that the respondents’ acts as regards the suit
lands, did not breach the petitioner’s right to practice, manifest, enjoy,
profess, maintain and promote their religion and as such they were not
inconsistent with Article 37 of the Constitution.

The respondents, as owners of the suit lands, maintained that they had no
legal obligation to take into account the interests of the petitioners while
dealing with third parties regarding the suit lands. There was no application
to acquire the suit lands by the petitioners to the second respondent. The
petitioners were not lawful or bonafide occupants of the suit lands, to be
entitled for protection under the provisions of sections 29 and 39 of the Land
Act, Cap. 227. The petitioners enjoyed no easements in the suit lands. The
All Saints Cathedral parish was freely accessible and operated normally,
inspite of the allocation of the suit land, to third parties. Therefore, the
petitioners’ fundamental right to practice their religion had not been
contravened.
Issue No.4:
The respondents denied that the suit lands were allocated or leased out to
third parties, and not the Church of Uganda, on the basis of religion or other
discriminatory grounds. The petitioners never applied to acquire any of the
suit lands from the second respondent, the statutory body mandated to deal
with such application.

According to the respondents, the petitioners were not entitled to the prayers
sought and the petition ought to be dismissed.

Determination of the issues:

This court, in interpreting the Constitution, is guided by the principle that
all the provisions of the Constitution must be looked at and be considered
together, each one supporting the other, so as to give effect to the purpose of
the Constitution: See: South Dakota vs North Carolina 192 US 268
(1940).

Further, it is the duty of this court, as the Constitutional Court of Uganda,

to enforce the paramount commands of the Constitution. In doing so, this
court, has to apply a generous and purposive construction of the provisions
of the Constitution that give effect to, and recognition of, fundamental rights
and freedoms: See: Supreme Court of Uganda Constitutional Appeal
No.1 of 1997: The Attorney General v Major General David Tinyefunza:
Judgment of Order, JSC(R.I.P) at page 37.

This petition, in the main, calls upon this court to determine whether or not,
on the facts of the petition, there has been breach and inconsistency with
regard to Articles 21(1) and (2), 29 (1) (c) and 37 of the Constitution.

Therefore, all the relevant Articles of the Constitution, whether expressly

referred to or not, will be brought into focus, and given a generous and
purposive interpretation in order to determine whether or not any breach or
inconsistency has happened with regard to the stated Articles of the
Constitution.

Issue No.1:
The law on admissibility of newspaper articles is now settled by the Supreme
Court of Uganda in Constitutional Appeal No.1 of 1997: Attorney
General V Major General David Tinyefunza, (supra). Newspaper articles
are inadmissible as being hearsay statements since they are reported
statements of persons who are neither parties to, nor witnesses in the case.
They are also not admissible under the res-gestae principle in terms of
sections 6, 9 and 10 of the Evidence Act.

In the instant petition the newspaper report was introduced by paragraph 7

of the affidavit of the 2 nd petitioner which stated:-
“That the Respondents allocated Mutineer Valley Park to a private
developer referred to in the press as Amina ……………. A copy of the
Newspaper report regarding this matter is hereby attached and
marked annexure “B”.
We note that in paragraph 4 of the affidavit of Henry Oluka, the Senior State
Attorney, filed in opposition to the petition, the fact that “Mutineer Valley
Park” land was allocated by the respondents to a third party was confirmed
as true. The said affidavit stated in its paragraph 4 that:
“4. That I also know that the allocation of land known as “Mutineer
Valley Park” could not have contravened and did not contravene
Articles 21 (1),(2), 29 (1) (c) and 37 of the Constitution as alleged by the
petitioners”.

The newspaper article named “Amina” as the allocatee of the said land.
There was no express admission of this by the respondents.

In the circumstances, this court holds that, to the extent that it was
admitted by the respondents that “Mutineer Valley Park” land was
allocated to a third party, then that part of the newspaper article, is
admissible evidence as a fact admitted by all the parties to the petition. The
rest of what is contained in the newspaper report, “annexure B” to the
affidavit of the second petitioner, is inadmissible as evidence. It is
accordingly severed from the said affidavit.

The deponent of the affidavit in issue stated in its paragraph 33:

“That, all I have stated herein is true to the best of my knowledge and
belief”.
The respondents did not assert that the affidavit in question contained any
falsehoods. On our part, we find the affidavit straightforward,
understandable, and one that did not prejudice, in any way, the respondents
in their defence to the petition. While it would have been more appropriate
for the deponent to state which paragraphs of the affidavit were true to the
best of her knowledge, and which ones were true to the best of her belief, we
hold that the failure to do so was merely procedural and did not invalidate
the affidavit. It is also our finding that the deponent was not argumentative
in her affidavit. All that she did was to state why she believed that her
constitutional rights and those of other petitioners had been violated.

Article 126 (2) (e) of the Constitution requires us to administer substantive

justice without undue regard to technicalities. We thus hold, in accordance
with the dictates of substantive justice, that the affidavit in issue was and is
not incurably defective by reason of being argumentative and not
distinguishing paragraphs based on belief and those based on personal
knowledge. Subject to severing that part of it which we have held to be
inadmissible evidence, we answer the first issue to the effect that the
affidavit of Allen Elwana Okiror was and is, proper in law and, therefore,
ought not to be struck out.

Issue No.2:
This issue requires us to resolve whether or not, the petition was
incompetent by reason of the fact that the reliefs sought by the petitioners
also affect third parties who are not parties to the petition. The third parties
referred to are the allocatees of the respective suit lands. It is a fact that
these allocatees were not made parties to the petition. They were therefore
not heard in this petition.

The right to be heard is a fundamental basic right. It is one of the

cornerstones of the whole concept of a fair and impartial trial. The principle
of “Hear the other side” or in Latin: “Audi Alteram Partem” is
fundamental and far reaching. It encompasses every aspect of fair procedure
and the whole area of the due process of the law. It is as old as creation
itself, for even in the Garden of Eden, the Lord first afforded a hearing to
Adam and Eve, as to why they had eaten the forbidden fruit, before he
pronounced them guilty: See R V University of Cambridge [1723] 1 Str.
557 (Fortescue J.) This principle is now of universal application. Article 10
of the Universal Declaration of Human Rights, 1948, Article 6 (1) of the
European Convention on Human Rights and Fundamental Freedoms, 1950,
and section 2 (2) of the Canadian Bill of Rights, as well as Article 7 (1) (c) of
the African Charter on Human and Peoples’ Rights, all provide for this right.

In Uganda, the traditional saying, that one ought not to decide a dispute
between a boy and a girl without first having heard the case of each side,
goes to show that even our forefathers in Uganda also embraced and
practiced this universal principle of justice. The principle is currently
constitutionally provided for in Uganda by Article 28 (1) of the Constitution.
This Article provides that in the determination of civil rights and obligations,
or any criminal charge, one is entitled to a fair, speedy and public hearing
before an adjudicating body established by law. This right is so fundamental
that Article 44 of the Constitution prohibits any derogation from its
enjoyment.

The concept of a fair and impartial trial involves a hearing by an impartial

and disinterested tribunal. This tribunal affords to the parties before it, a
hearing before it condemns, proceeds upon inquiry and results in judgment,
only after consideration of evidence and facts as a whole. Fair hearing
involves the right to present evidence, to cross-examine and to have findings
supported by evidence: See: Black’s Law Dictionary (6 th Edition) and also
Supreme Court of Uganda Election petition No.04 of 2009: Bakaluba
Peter Mukasa v Nambooze Betty Bakireke, (Judgment of Katureebe, JSC).

We note that some of the reliefs sought by the respondents in the petition
are in the nature of declarations that a number of acts allegedly carried out
by the respondents with regard to the suit lands were discriminatory and/or
breached the petitioners’ rights to belong, practice, and manifest their
religion, thus being inconsistent with Articles 21 (1), and (2), 29 (1) (c) and
37 of the Constitution.

To the extent that the declarations sought are as between the petitioners
and the respondents, and do not affect the rights of any third parties, who
are not parties to the petition, we find and hold, that the petition is proper in
law and properly before this court.
However, there are also reliefs prayed for in the petition whereby this court
is asked to make orders cancelling the leases and certificates that already
have individual third parties as registered proprietors of the respective suit
lands. The registered proprietors are not parties to this petition. In other
words, the petitioners are seeking from us orders to disentitle these third
parties of their respective interests in the suit lands, when such parties have
not been heard. We are unable to do that, as to do so, would be to condemn
such third parties, without having availed to them a fair hearing, which act
would be contrary to Article 28 of the Constitution.
We accordingly hold that the petition is only partly competent in as far as it
seeks reliefs that are only as between the petitioners and the respondents,
but is incompetent in respect of those reliefs, which, if granted, would affect
the interests of third parties in the suit lands, yet those third parties are not
parties to this petition.

Issue No.3:
In this issue we are to resolve, whether or not, the allocation and the fencing
off of the suit lands, to the exclusion of the Church of Uganda, breached the
petitioners’ right to practice, manifest, enjoy, maintain and promote their
religion; thus being inconsistent with Articles 29(1) (c) and 37 of the
Constitution of Uganda.

The essence of the petitioners’ complaint is whether the acts of the

respondents as regards the suit lands violated the petitioners’ right to
freedom of religion.

Under Articles 29(1) (c) and 37 of the Constitution, every person has the
right to freedom to practice any religion, and manifest such practice, which
includes the right to belong to, and participate in the practices of any
religious body or organization in a manner consistent with the Constitution.
Every person has also the right to belong to, enjoy, practice, profess,
maintain and promote any creed or religion in community with others.
The above Articles of the 1995 Uganda Constitution have their foundation
from a number of International Instruments that preceded the Uganda
Constitution.

The two Articles, are almost a replica of Article 18 of the Universal

Declaration of Human Rights. The International Covenant on Civil and
Political Rights also in its Article 18 provides for freedom of thought,
conscience and religion. This instrument however also provides that freedom
to manifest one’s religion or beliefs may be subject to limitations as may be
prescribed by law in order to protect public safety, order, health, morals or
the fundamental rights and freedoms of others.

The African Charter on Human and People’s Rights in its Article 8 provides
that freedom of conscience, the profession and free practice of religion shall
be guaranteed. No one may, subject to law and order, be submitted to
measures restricting the exercise of the said freedoms.

Article 12 of the American Convention On Human Rights provides for

everyone to have a right to freedom of conscience and of religion while the
European Convention on human Rights also provides for similar rights.

Other international Instruments that guarantee the right to freedom of

conscience and of religion are:-
Article 5 (d) (vii) of the International Convention on the Elimination of All
Forms of Racial Discrimination; Article 14 of the Convention on the Rights of
the Child; Article IX of the African Charter on the Rights and Welfare of the
Child; and Article 4(1) of the Inter-American Convention on the Prevention,
Punishment, and Eradication of Violence against Women.

On the basis of the above international Instruments, and the current norms,
practices and values practiced by the international community of nations, it
can now be safely asserted that international human rights law prohibits
discrimination on the ground of religion. Therefore Articles 29(1) (c), 37 and
other relevant national objectives and Articles of the Uganda Constitution
are a reinstatement of the international human rights law position.

We observe that a careful analysis of Articles 29(1) (c) and 37 of the

Constitution, as well as the other considered International Instruments
providing for the freedom of conscience and religion, shows that there is a
distinction between the right to freedom of thought, conscience and religion,
on the one hand, and the right to manifestation of religion and belief on the
other.

Freedom of thought or conscience involves one thinking and holding to one’s

beliefs freely. This freedom cannot be subjected to coercion or compulsion.
Freedom of thought and conscience is therefore an absolute right. See:
Human Rights in Europe: A study of the European Convention on
Human Rights: 3rd Ed., A.H Robertson and J.G. Merrills, 1993, Manchester
University Press, p.145.

By way of contrast, the freedom to manifest one’s religion or belief on the

other hand, is not absolute. It is subject to such limitations that are
necessary in the public interest, which limitations have to be prescribed by
law and are necessary in a democratic society. For example, holding public
services, processions and other manifestations of belief and displays, may be
subjected to regulation. Limitations to protect public safety, order, health,
morals and the rights and freedoms of others are therefore a necessity in a
democratic society: The test of what is “necessary in a democratic society” is
the ultimate safeguard against interference with the enjoyment of a person’s
fundamental freedoms, that cannot possibly be considered necessary in
society that is pluralistic and tolerant. See: European Court of Human
Rights Case of KOKKINAKIS V GREECE: Judgment of 25 May 1993,
Series A, No.260 – A.

The petitioners have contended before us that the acts of the respondents
breached their rights to enjoy, maintain and promote their religion. This is
because although their All Saints Cathedral parish had expressly
demonstrated an interest in the suit lands for development purposes, the
respondents denied the Church’s applications, thus depriving the Church of
development options. Further, the suit lands had been allocated to third
parties without the Church being involved in the process or being consulted.
The fencing off of part of the suit lands near State House, that was being
used by the Church for parking and access, limited and curtailed the
petitioners’ rights to enjoy, practice, maintain and promote their religion.

The respondents denied all the above petitioners’ assertions.

We have carefully considered the facts and the submissions as presented by
the petitioners on one hand and the respondents on the other. We have also
carefully applied the relevant law to the facts before us.

We are unable to find, on the evidence before us, that the petitioners’ right
to freedom of thought and conscience, whereby each petitioner was and is
free to think and hold to his/her religious beliefs, which right is absolute,
was in any way violated by the acts of any of the respondents. It has not
been proved to us that any of the petitioners was prevented from freely
thinking and/or holding to his/her religion by any of the acts of the
respondents that are the subject of the complaints in this petition.
It however remains to be decided whether any acts of the respondents did, in
any way, violate the petitioners’ manifestation of religion and belief,
including, but not limited to, enjoyment, practice, maintaining and
promoting the petitioners’ religion and beliefs.

The evidence before us is to the effect that the then Church of England
trustees, first occupied the land where All Saints Cathedral is currently
situate, in 1938. On 12.06.1957, a formal lease was executed between the
Government of Uganda Protectorate and the Church of England Trustees,
the predecessors in-title of the present trustees of the Church of Uganda. By
virtue of this lease the Church of England Trustees became the registered
owner as leaseholder under Crown Lease, No.35763, Leasehold Register
Volume 165 Folio 7, of the land situate between plots 4 and 2 Kyaggwe and
Stanley Roads respectively.

For the period from 1938 up to 2001, we have not been availed, by the
petitioners, any documentary evidence whereby the church applied to the
second respondent, or its predecessor in title, to acquire more of the
neighbouring and/or adjoining lands, for the purpose of expansion of church
activities or any other purpose.

The evidence availed to us by the petitioners is that on 22.08.2001, the Most

Rev. Dr. Livingstone Mpalanyi-Nkoyoyo, then Archbishop of The Church of
Uganda/Bishop of Kampala Diocese, addressed a letter to Hon. Henry
Kajura, The Hon. Minister of Public service, renewing a request of the
church, that had been verbally made to H.E. The President, to acquire the
land comprised in plot 4, situate between plots 2 and 6, Lugard Road,
Nakasero, Kampala. The letter was copied to H.E. The President. The letter is
annexure “F” to the second petitioner’s affidavit in support of the petition.
We received no explanation from the petitioners, or their counsel, as to why
this letter was addressed to the Minister of Public Service, who had nothing
to do with land matters. We also find it strange that the letter was merely
copied, but not directly addressed to H.E. The President, when a request was
being made to H.E. the President to assist the Church acquire the land. We
also received no evidence that H.E. the President received the copy of the
said letter. Indeed there was no evidence before us whether Hon. Henry
Kajura, the Minister of Public Service, received this letter.

Section 46 of The Land Act, Cap. 227, establishes the Uganda Land
Commission. This Commission, under section 49 holds and manages any
land in Uganda which is vested in or acquired by the Government in
accordance with the Constitution. Section 53 (c) empowers the Commission
to sell, lease or otherwise deal with the land held by it.

This court received no evidence as to why the Church of Uganda did not
formally apply for the land, the subject of the letter to the Hon. Minister of
Public Service, or any other of the suit lands for that matter, through the set
procedure for acquiring land from the second respondent. Had this been
done, the second respondent would have been under obligation to deal with
the said church application under the law, and the church would have been
entitled to challenge the second respondent, just in case, the application was
handled contrary to the law and to the prejudice of the church.

It is our finding that the said letter annexure “F” to the affidavit of the
second petitioner, does not amount to a legitimate application by the Church
of Uganda to acquire any of the suit lands from any of the respondents. So
too is the letter dated 02.05.06 also annexure “F” to second petitioner’s
affidavit, written in respect of plot 4 Lugard Road by the All Saints Church
provost, to the Minister of Water, Lands and Environment. Apart from being
addressed to the Minister of Water, Lands and Environment, and not the
Uganda Land Commission, the body that receives and entertains
applications to acquire lands vested in it, the letter talks of interests of
sitting tenants on the said plot 4 Lugard Road, and a group of people fencing
off the said plot. The letter is, therefore, no legitimate application by the
church to acquire the land comprised in plot 4 Lugard Road.

We accept the explanation contained in paragraph 7 of the affidavit of the

chairman of the second respondent, Jehoash Mayanja – Nkanji, dated
13.11.07, that the petitioners, through the Church of Uganda or otherwise,
have never applied, in accordance with the law, to acquire any of the suit
lands neighbouring them.

Accordingly the petitioners have not shown that they had any legal or
equitable interest in the suit lands. The Church of Uganda All Saints
Cathedral parish just happened to be situate and occupying pieces of land to
which the suit lands were adjoining. Neighbourhood to these lands, per se,
without taking proper steps in law to apply for acquisition of any one of
those lands, did not vest in the Church of Uganda, any enforceable rights in
any of the suit lands.

The petitioners have not proved to our satisfaction that they were denied
allocation of the suit lands, or that the said lands were allocated and leased
out by the respondents to third parties, on the basis that denied the
petitioners to belong to, enjoy, practice, profess, maintain and promote their
religion.

We therefore find that the respondents’ actions in allocating the suit lands to
the various third parties were not inconsistent with articles 29 (1) (c) and 37
of the Constitution.

4th issue:
This is whether or not the allocation, change of user and grant of leases of
any of the suit lands to third parties, other than the Church of Uganda, was
discriminatory and therefore inconsistent with the provisions of Article 21 (1)
and (2) of the Constitution of Uganda.

Article 21 (1) provides that all persons are equal before and under the law in
all spheres of political, economic, social and cultural life and in every other
respect, and enjoy equal protection of the law. Under Article 21 (2) a person
shall not be discriminated against on the ground of sex, race, social or
economic standing, political opinion or disability.

“Discriminate” for purposes of Article 21, and indeed for the whole
constitution, is to give different treatment to different persons attributable
only or mainly to their respective descriptions by sex, race, colour, ethnic
origin, tribe, birth, or religion, social or economic standing, political opinion
or disability: See Article 21 (3). Article 21 (4), allows discrimination to be
done by Parliament for purposes of implementing policies and programmes
for affirmative action in the social, economic, educational and other
imbalances in society.

Article 21, like Articles 29 and 37 of the Constitution, has also its
foundation in a number of international legal Instruments that preceded the
1995 Uganda Constitution. These are: The Universal Declaration of Human
Rights (Article 2 (1), The International Covenant on Civil and Political Rights
(Article 18), The American convention of Human Rights, 1969, (Article 12),
The European Convention on Human Rights (article 9) and The African
Charter on Human and Peoples’ Rights (Article 8).
On the basis of the above international instruments, as well as the case law
on their interpretation, and taking the Uganda Constitution as a whole, the
term “Discrimination” has come to imply a distinction, exclusion, restriction,
or preference based on race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status, which has
the purpose or effect of nullifying or impairing the recognition, enjoyment or
exercise by all persons, on an equal footing, of all rights and freedoms. See:
General Comment No.18 in United Nations Compilation of General
Comments, p.135 para 7;
and also
European Court of Human Rights, Case of Cha’are Shalom Ve Tsedek V.
France, judgment of 27 June, 2000.

The prohibition against discriminatory conduct is based upon the universal

principle of equality before the law. The human race as a family is
characterized by the attribute of oneness in dignity and worthiness as
human beings. Therefore, there ought not to be one group of human beings
entitled to privileged treatment as regards enjoyment of basic rights and
freedoms over others, because of perceived superiority. Likewise, no group of
human beings should be taken as inferior and not entitled, and be treated
with hostility, as regards enjoyment to the full of the fundamental rights and
freedoms.

The right against discrimination is however not absolute. This is because, in

the activities of human beings, not all differences in treatment are in
themselves offensive to human dignity. Some inequalities in treatment of
fellow human beings are necessary so as to achieve justice or to offer
protection to those in weak or vulnerable situations of life. This is the import
of article 21 (4) of the Uganda Constitution.
In the Cha’ase Shalom Ve Tsedek V. France case (supra), it was stated
that discrimination is justified where it complies with the principle of legality
of being prescribed by law to ensure public safety, order, health, morals, and
fundamental rights and freedoms of others; or where it is necessary to
achieve a concerned objective in the nature of affirmative action.
Discrimination is also allowed where it is necessary in a democratic society.
Discrimination ought not to be allowed if the same is being used as a
propaganda for war or for national, racial or religious hatred.

The petitioners have submitted that the Church of Uganda was

discriminated against on economic grounds by the respondents, when the
suit lands were allocated to third parties, without giving an opportunity to
the church to compete in acquiring the same. Yet the first respondent had
actual or implied knowledge of the Church’s interest in the said lands. Land
was allocated in areas that had been indicated to the church as being
unavailable for allocation, e.g. Mutineers Park, but the same land was later
allocated to some other third parties. Also land that was being used by
parishioners for parking purposes was fenced off, allegedly for security
reasons, but subsequent allocations to other third parties showed that the
excuse of “security reasons” had no truth in it. Lastly, the change of user of
some of the suit lands, without taking into account the long standing rights
and interests of the church, was discriminatory of the church.

We have already found as a fact that the Church of Uganda never lodged, in
accordance with the law, any application to be allocated any of the suit
lands by the second respondent pursuant to the provisions of the Land Act,
Cap. 227.

In our considered judgment, the mere fact that the suit lands were and still
are, all in the neighbourhood of and/or adjoining the land owned by the
Church of Uganda, where All Saints Cathedral is situate, did not and does
not per se, create an obligation on the part of the respondents to invite the
church to participate, in the allocation of the said suit lands to third parties
who legitimately applied to acquire those lands, while the Church never did
so.

Given the position of the law as to discrimination, and the fact that the
Church of Uganda took no legitimate steps to acquire interest in any of the
suit lands, we find that, having considered the Constitution as a whole, the
petitioners have not satisfied us that they were in any way discriminated
against by the respondents in respect of any of the suit lands.

Therefore our answer to the fourth issue is that the allocation, change of
user and grant of leases on the suit lands was not discriminatory and
therefore not inconsistent with Article 21(1) and (2) of the Constitution.

Decision of the Court:

The petitioners having been unsuccessful on all the issues framed, this
court dismisses the petition.

Costs:
Court has noted the fact that the petitioners instituted the petition for and
on behalf of the parishioners of All Saints Cathedral parish, Nakasero, and
not for their individual personal gain. The petition has also afforded an
opportunity for consideration of important constitutional issues particularly
as regards the fundamental rights and freedoms of equality and freedom
from discrimination, protection of Freedom of Conscience and beliefs,
freedom to practice and manifest one’s religion as well as the Right to
culture. We find that the petitioners, even though not successful, brought a
worthy cause before us. They thus do not deserve to be condemned in costs.
We accordingly make no order as to costs.

Dated this …08th….day of …August…….2011.

Onegi Obel, Achwa Valley and Ranch Ltd vs The Attorney General and
Gulu District Local Govt (HCT-02-CV-CS-0066-2002) ((HCT-02-CV-CS-
0066-2002)) [2006] UGHC 49 (5 April 2006);

1. ONEGI OBEL
2. ACHWA VALLEY RANCH LTD):::::::::::::::::::::::PLAINTIFFS
VERSUS

1. THE ATTORNEY GENERAL

2. GULU DIST LOCAL GOVT )::::::::::::::::::::::::::DEFENDANTS

BREFORE: HON AUGUSTUS KANIA

JUDGMENT

The first plaintiff, Onegi Obel is the registered proprietor of the land
comprised in Lease hold Register vol 902 Folio 7 at Alero in West Acholi
herein after referred to as the suit land. The second plaintiff Achwa valley
Ranch Limited of which the first plaintiff is a share holder and chairman,
carried on the business of ranching and general agriculture on the suit land.
The two plaintiffs bring this suit against the Attorney general in his
representative capacity for illegal compulsory acquisition of and trespass to
the suit land and they seek the following relief;-
a)
General and special damages for trespass and breach of Laws to the
first plaintiff.
b)
Compensation or damages in lieu thereof.
c)
General and exemplary damages.
d) Declaratory Judgment and orders that
i.
The plaintiffs are entitled to notice prior to the construction of
the road on the private property in the suit land.
ii.
The act of constructing a road and taking over the plaintiff's private bridge is
in violation of the plaintiff's fundamental rights and freedoms.
iii. The plaintiffs are entitled to compensation and for vacant possession
of the premises.
iv. A declaration that the acts of the defendant in constructing the
road as he did are illegal and contrary to law.
e)
Costs of the suit.

The back ground of this suit is briefly as follows; - The first plaintiff acquired
and became the registered proprietor of the suit land in 1975. He later
helped to incorporate the second plaintiff company with himself and his wife
as shareholders. The first plaintiff then permitted the second defendant to
carry on the business of ranching and general farming on the said suit land.
The 2nd plaintiff then constructed on the land a farm house a cattle dip, a
rice mill, under ground fuel tanks and a bridge and stocked his farm land
with 1000 boran animals. Some time in the wake of the insurgency in the
Acholi sub region some of the above infrastructure on the suit land was
destroyed, vandalized and looted. About 2001 the Ministry of works
constructed a public road through the suit land nearly cutting into half and
the Ministry of works did this without the consent of the plaintiffs. The
plaintiffs complain that by constructing this road the defendant turned the
private bridge into a public utility, rendered the farm house, the cattle dip
and the rice mill useless because the said road passed too close to them.
They also complained that by the road passing through the suit land the
animals would be exposed to diseases as passing of both people and animals
would not be controlled. The plaintiffs aver that by the acts of the defendant
they have suffered loss and damages hence this suit.

The defendant filed a written statement of defence in which he made an

outright denial.
When the case came up for hearing before m on the 6.07.2004 I ordered the
hearing to proceed ex-parte because the defendant or his representative was
not in court though the defendant had been duly served with the hearing
notice for the day. Even when the matter had been heard ex-parte, the
plaintiffs decided to accommodate the defendant and the parties fixed the
hearing by consent for the 25th November 2004 to enable counsel for the
defendant cross examine the plaintiffs, key witness PWI Onegi Obel On that
day the counsel for the defendant was again absent without an explanation.
Consequently the hearing of the suit proceeded ex-parte up to the end.

At the commencement of the hearing of the suit, the following issues were
framed for determination namely
1.
whether the defendant trespassed on the plaintiff’s suit land.
2. whether the defendant is in breach of statutory duty.
3. whether the plaintiff's constitutional property rights have been
violated.
4. whether the plaintiffs have suffered loss.
5. whether the plaintiffs are entitled to remedies and if any which
remedies.

To prove their case, the plaintiffs called two witnesses, the first plaintiff who
testified as PWI and PW2 Openytho Francisco Pinchwa.

With regard to the first issue whether the defendant trespassed on the
plaintiffs suit land, PWI Onegi Obel the first plaintiff testified that he is the
registered proprietor of the suit land the Certificate of tile of which is exhibit
P.3 on the court record. Some time in the 1970's he gave the land to Ms.
Achwa valley Ranch Ltd of which he now is chairman to conduct the
business of ranching and general agricultural farming. The Incorporation
Certificate of the said company was tendered and marked Exhibit P .1.

In 2001 he learned that the defendant was constructing a road running N

orth/South – South/West through the suit land without his consent. He
wrote exhibit P.2 to the Executive Engineer of the Ministry of Works
Complaining of unauthorized construction on his land. This was to no avail
as the defendant Continued with constructing the said road right up to his
private bridge which he had build at the Southern end of the suit land.

PWI Onegi Obel also testified that as a result of the construction of the
bridge on his land he could not control the passage of the Public through the
suit land and this greatly disrupted the farming and ranching activities of
the second plaintiff in several ways. The cattle were put at risk of
contracting animal diseases due to uncontrolled movement of animal and
people along the said road, the farm house became inhabitable because the
road passed too close to it and the cattle dip was likely to be silted from the
dust from the said road. The witness also testified that he as the registered
proprietor of the suit land sustained loss and damages because the
defendant excavated murrum in seven spots on the suit land and left the
area uncovered thereby depreciating the value of the suit land. It was PWI
Onegi Obel’s evidence that the fact that the road complained of was
constructed right to the bridge means the defendant has in fact taken over
and converted what was a private bridge into a public property. He reiterated
that the construction of the said road was done without his notice and he
was informed by the Chief Engineer Northern Region that it was the Ministry
of Works of the Government of Uganda responsible for the construction and
that the permanent secretary Ministry of Local Government in his letter
dated 30.11.2001 admitted the road project was wrongly handled.

Mr. Madrama, learned counsel for the plaintiffs, submitted that under the
provisions of section 72 of the land Act Cap 227 where any officer of
Government has necessarily and unavoidably has to enter private property
in order to carry out his/her duties notice of not less than three days has to
be given to the owner or occupier of the proposed entry. He also pointed out
that Government has to pay a fee to the owner or occupier of the land for the
time spent by such officer on the land.

Counsel submitted that under section 73(1) of the land act where it is
necessary to execute public works on any land, the authorized under taker
shall enter into a mutual agreement with the owner of the land regarding the
execution of the public works on the land. He pointed out that Public works
as defined in section I of the land act includes roads. He argued that though
under the provisions of Article 26 of the Constitution prompt payment of fair
and adequate compensation prior to the taking of possession or acquisition
of the property is a condition to the compulsory acquisition of an individual's
property, in the instant case this condition was not met. Mr. Madrama
submitted that in as far as there was no notice to the plaintiffs, no mutual
agreement was arrived at with the plaintiffs prior to the execution of the
road works, and the construction of the road was unlawful. The said
construction of 8 kilometres of Public road through the private property of
the first plaintiff without involving or seeking his consent and the consent of
the 2nd plaintiff amounted to unlawful interference and constituted
unlawful ingress into and trespass to the suit land.

After referring to the definition of trespass as contained in Salmonds Law of

Torts Nineth Edition etc par 207 and 211 Mr. Madrama submitted that
the evidence adduced by PWI Onegi Obel proved that;
i.
The entry was a wrongful entry.
ii. The first plaintiff is the registered proprietor of the land and the
second plaintiff is in occupation of the suit land for purposes of ranching.
iii. Construction of a road by excavation or grading is a trespass by
infringement of the horizontal boundary of the land.
iv. There was entry by the defendant's servants on the plaintiffs land
without any authority or permission contrary to what is stipulated by the
land Act.

Mr. Madrama also submitted that the title of the first plaintiff as the
registered proprietor of the suit land can not be impeached and that under
section 59 of the Registration of Titles Act Laws of Ugandan 2000 the
production of the Certificate of Titles is a conclusive of evidence of ownership
as was held in the case of Kampala Bottlers Limited Vs Damanico (U) Ltd
SCCA No. 22/1992 . He concluded that in the instant case the first plaintiffs
by producing the Certificate of title to the suit land based, Exhibit p.3 had
conclusively proved his unimpeachable title to the suit land. This right of
ownership was abridged by the activities of the defendant on the land that
tended to lower the value of the suit land. Counsel invited Court to answer
the first issue in the affirmative.
Trespass to land is defined in Salmonds Law of Torts Ninth Edition at
page 207 in the following terms;-
1.
“The wrong of trespass to land consists in the act of (a) entering upon
land in the possession of the plaintiff or (b) remaining upon such land or(c)
placing any material object upon it in each case without lawful Justification.

2.
Trespass by wrongful entry. The commonest form of trespass consists
in a personal entry by the defendant, or by some other person through his
procurement, into land or building occupied by the plaintiff. The slightest
crossing of the boundary is sufficient e.g. to put ones land through a
window, or to sit upon a fence. Nor indeed does it seem essential that there
should be any crossing of the boundary at law provided that there is some
physical contact with the plaintiff s property.”

Further at page 211 paragraph 8 the learned author stated that any entry
above or below the surface of land constitutes trespass;-
“In general he who owns or possesses the surface of land owns possesses all
the underlying strata also. Any entry beneath the surface therefore, at what
ever depth, is an actionable trespass; as when the owner of an adjourning
coalmine takes coal from under the plaintiffs land. When the possession of
the surface had become separated from the sub-soil (as by a conveyance of
the sub soil for mining purposes, reserving the surface) any infringement of
the Horizontal boundary thus created is trespass.”
It is trite that trespass is interference with right of occupation and not the
interference with ownership, ownership alone unaccompanied by possession
is protected by different remedies. A land lord therefore has no cause of
action in trespass unless he can prove actual harm inflicted on the property
of the sort as to affect the value of his reversionary interest in it. See
Salmonds Law of Tort Ninth Edition page 214 Para 48.
In the instant case the first plaintiff is the registered proprietor of the suit
land as evidenced by the Certificate of title which is exhibit P.3 on the Court
record. It is claimed the defendant constructed an eight Kilometer Public
road across the suit land and excavated murrum and carried away the same
leaving the spots uncovered and therefore a hazard for the cattle. It is
contended that by constructing the road through his land the suit land was
reduced by the said size of the said road and therefore its value was also
affected. The first plaintiff also argued that the excavation of murrum in the
seven spots on the suit land rendered the suit land in those areas infertile
and the uncovered spots became hazards to animals grazing on the land as
well as to people. Thus affecting the value of the suit land.

I agree that the size of the suit land was indeed reduced by the land or land
area that was used to construct the eight kilometre long road. I also find in
making this road and the bridge at the end of the suit land Public the value
of the suit land was affected.

Therefore the landlord the 1st plaintiff is entitled to sue as it has been
shown that the acts complained about affected the value of the suit land.

The uncontested evidence for the plaintiff is that the suit was put at the
disposal of the second plaintiff for the purpose of running a ranch. From the
uncontradicted evidence of PWI Onegi Obel the 2nd plaintiff constructed on
the suit land a farm house a cattle dip, rice and grain mill and stocked the
said suit land with 100 boran heads of cattle. The second plaintiff as proved
by the above evidence was in occupation of the suit land and therefore it was
entitled to bring this present suit in trespass.

What needs now to be determined is whether the defendant committed acts

of trespass against the interest of the plaintiffs.
As far as the interests of the 1st plaintiff as the registered proprietor and the
land Lord are concerned, the uncontested evidence of PWI Onegi Obel is that
the defendant on getting onto the suit land, through the Ministry of works,
constructed an eight Kilometer road across the suit land. This said road was
made a public road, thus taking away that part of the land which is covered
by the road from the ownership and control of the first plaintiff. This I find
had the effect of reducing the size of the land comprised in LHR Vol 902,
Folio 7 at Alero over which the first plaintiff has a lease by taking out of the
suit land that piece of land which now constituted the said road had also the
effect of reducing the value of the suit land.

PWI Onegi Obel testified that in the process of constructing the road, the
contractors employed by the defendant dug out murrum from the various
parts of the suit land leaving pools of water which are a hindrance to the
movement of animals and people. By this exercise the defendant took out
soil from the suit land and left the resulting holes and ditches not sealed in
seven different spots of the suit land. The act of excavating murrum from the
suit land and of leaving the holes created thereby unsealed the value of the
suit land was degraded. For these reasons, though the first plaintiff was not
in occupation at the time of the trespass, actual harm was inflicted on the
suit property as to affect the value of his reversionary interest in it and
therefore the first plaintiff has an action in trespass against the defendant.
See Salmonds Law of Torts Ninth Edition page 214 Para 48 (Supra). The
first issue must be answered in the affirmative.

With regard to the second issue whether the defendant is in breach of

statutory duties in executing the public works on the plaintiffs land. Mr.
Madrama submitted that whereas under section 72 of the Land Act it is
required that notice of encampment on private property be given by an
officer of Government at least three days before encamping on private
property, no such notice was given in the instant case. He also pointed out
that contrary to the provisional of section 72(3) of the Land Act the
defendant did not pay promptly a reasonable fee to the occupier of the land.
Counsel further argued that contrary to the provisions of Section 73 (1) of
the Land Act, the defendant did not enter into a mutual agreement with the
owner of the land for the execution of public works on the land. Lastly
counsel referred to the constitutional provision which enjoins the
Government and any Public authority not to deprive a citizen of property
rights of any kind without first;-
(a) Ascertaining that such acquisition is necessary for public use or in
the interest of defence, public safety order or morality or public health.
(b) The taking over is made under a Law that caters for payment of a fair
and adequate compensation prior to the act of the authority.

Mr. Madrama submitted that the defendant in not complying with the above
statutory requirements is in breach of statutory duty to the prejudice of the
plaintiff.

Breach of Statutory duty is a tort in Common Law which entitled the

plaintiff to damages or and an injunction. The Law in this regard is that
Public bodies representing the public are not liable to be sued by an
individual member of the public who has sustained injuries in consequence
of the omission of such a body to perform a statutory duty created for the
benefit of a class of which such a person is one. However the public body
may be liable if by its acts, it alters the normal condition of something which
it has a statutory duty to maintain and in consequence some person of a
class for whose benefit the statutory duty is imposed is injured. The cause of
action in breach of statutory duty is far misfeasance and not for
nonfeasance. The law in this regard is eloquently stated in the case of
Vermeulen Vs Attorney General & Ors [1986] L.R.C C Const. 786 thus;-
“The basis for these claims is the tort of misfeasance in public office, there
can be no doubt that this tort does not exist as a separate basis for legal
liability and there are many academic writings supporting this view. However
within the context of judicial precedent, the extend of the nature of the tort
has been defined in authoritative terms by the Privy Council in Dunlop vs.
Woollahra Municipal Council [1982] AC 158 where this species of wrong was
described as;-
“The well established wrong of misfeasance by a public officer in the
discharge of his duties, the act complained of must be either an abuse of
power actually possessed or an act which is a usurpation of authority which
is not possessed, but the essential ingredient of the tort is the presence of
malice in the exercise or purported exercise of statutory power. Malice
obviously includes a state of mind representing malice in the popular scene
namely an attitude of ill - will or spite against the plaintiff, and then there is
the different situation where an official acts beyond his jurisdiction with
knowledge of that fact. But there can be no difference between those two
motivations in so far as this particular tort is concerned. It is to be
emphasized that malice in this context will include a situation where there is
no element of personal spite or ill will. It includes the case where a person is
actuated by reasons which are collateral to and not authorized by the rules
of the conduct by which he is bound. In a case of this sort a public officer
may exercise his official powers against another person for reasons devoid of
ill will but motivated by the desire to reach a result not comprehended by
the power of decision or the power of discretion with which he has been
vested”

Under Section 72(1) of the Land Act where any officer of Government
necessarily and avoidably in order to carry out his or her duties needs to
enter private land, he or she may enter giving not less than three days notice
of the proposed entry to the owner or occupier of the land.
Section 72(3) of the Act provides for a reasonable fee for every day spent on
the land in issue by such an officer and for compensation for any damages
caused to the land in issue.
Section 73 of the same land Act further provides that where it is necessary
to execute public works on any land, an authorized undertaker shall enter
into mutual agreement with the occupier or owner of the land in accordance
with this act, and where no agreement is reached, the Minister may
compulsorily acquire land in accordance with section 42.

Public works as defined under section I (a) of the land Act includes roads
which in the instant case was the Public works carried out on the suit land.

It is also a fundamental property right as enshrined in Article 26(2) of the

Constitution that no one shall be compulsorily deprived of property or any
interest in or right over property except only when;-

(a) The taking of the possession or acquisition is necessary for public use
or in the interest of defence, public safety public order, public health; and
(b) The compulsory taking of possession or acquisition of property
is made
under a law which makes provision for;-
(i) Prompt payment of fair and adequate compensation prior to the
taking of possession or acquisition of the property.
(ii) a right of access to a court of law by any person who has an interest or
right over the property.

Section 72 of the Land Act envisages a situation where an officer of

Government encamps on the land of an occupier for purposes of carrying out
his duties. It does not cater for a situation like the present one where a
Government authority executes a Public works on an occupiers' land and in
the process expropriates the land as part of it. I accordingly don't find
section 72 of the Land Act relevant for the instant case.
From the evidence for the plaintiff it is clear that the defendant in
constructing a road through the land of the plaintiff for the use of the
general public was executing a public works within the context of section
73(1) of the Land Act. That section provides as follows;-
“73(1) where it is necessary to execute public works on any land an
authorized undertaker shall enter into mutual agreement with the occupier
or owner of the land in accordance with his act, and where no agreement is
realized the Minister may compulsorily acquire land in accordance with
section 42 of the Act.”

In the instant case the Ministry of Works which was the authorized
undertaker in this case got onto the land and executed public works by
constructing a road without entering into a mutual agreement with the
occupier. This act by the Ministry of works was contrary to and in breach of
section 73 (I) of the Land Act.

As if that was not enough the constructing of the said public works and
turning it into a public road had the effect of depriving the plaintiff of his
land.

Article 26 of the Constitution and section 42 of the land Act empowers the
Government to compulsorily acquire the property of any body if such
acquisition is necessary for public safety, public morality or public health. In
the event of such acquisition the Government is bound to pay adequate
compensation prior to the said acquisition.
In the instant case there is nothing to show that the land of the plaintiff or
the road constructed thereon were necessary for public use, in the interest
of defence,public safety, public morality, or public health nor did the
Government pay any adequate compensation or at all prior to taking over the
plaintiff s land. By both provisions of section 73(1) 43 of the land Act and
Article 26 of the Constitution the Government is bound by statute to show
that the property it intends to acquire compulsorily is necessary for defence
public security, public health or public morality and to pay adequate
compensation prior to such acquisition. In the instant case the defendant
failed to prove the plaintiffs land was necessary for public safety, public
morality or public health and to pay adequate and prompt compensation as
required by the land Act and the Constitution. I accordingly find that the
defendant is in breach of statutory duty, the second issue is answered in the
affirmative.

This now takes me to the third issue which is whether the plaintiff s
constitutional property rights have been affected. Regarding the issue, Mr.
Madrama submitted that under the provisions of Article 237 (1) of the
Constitution, all land belongs to the citizens of Uganda and shall vest in
them in accordance with the land tenure system provided for in the
Constitution and that Article 237(2) of the same Constitution provides that
the Government or Local Authority may subject to Article 26 of the
Constitution acquire land in the public interest and that the condition
governing such acquisition shall be prescribed by parliament. Counsel also
argued that article 26( 1) of the Constitution protects every persons right to
own property individually or in association with others, Article 26(2)
prohibits a person being compulsorily deprived of property or interested in
or right over property except when;-
a.
The taking of possession or acquisition is necessary for public se or in the
interest of defence, public safety public order, public morality or public
health.
b. The compulsory taking of possessions of property is made under a
law which makes provisions for;-
i.
Prompt payment of fair and adequate compensation prior to the taking of
possession or acquisition of the property and
ii. A right of access to a court of law by any person who has an interest
or right over the property.

Relying on the decision of the cases of Society United Docks & Ors Versus
Government of Mauritius Marine Works Unions & Ors Versus Mauritius
Authority & Ors [1985] IAU .E.A 864 , Mr. Madrama submitted that in law,
loss caused by deprivation is the same in effect as loss caused by
compulsory acquisition. He contended that the property rights of the plaintiff
were affected by the Government constructing an eight kilometer long and
20 wide road across the Plaintiffs’ land. Apart from the actual road there is a
50 feet road reserved on either side of the road running from the centre of
the width to the road which forms part of the road in that no persons is
allowed to carry out any activity on it. He contended that since the roads act
in section 5(1) makes it an offence for any person to connect the road with
any cattle path bicycle track, side road or entrance to a dwelling or other
premises, the land or that part of the land covered by the road and its road
reserve has been taken away from the plaintiff, he has been deprived of it
and his property rights over it have been affected.

Earlier in this Judgment on the basis of the Certificate of title Exhibit P.3
which is in the names of plaintiff I found that the first plaintiff is the
registered proprietor of the suit land comprised in L.H.R Vol 902 Folio 7 at
Alero Gulu District which he owns in accordance with Article 237(3) (d) of
the Constitution of Uganda. Article 26 of the Constitution recognizes every
person's right to own property either individually or in association with
others.
Section 73(1) of the Land Act provides that if it is necessary to execute
public works on any land on authorized under taker shall enter into a
mutual agreement with the occupier or owner of the land in accordance with
this act, and where no agreement is reached the Minister may compulsorily
acquire land in accordance with section 42 of the same act. Section 42
thereof refers to Article 26 which for purposes of compulsory acquisition
provides that no person shall have his property compulsorily acquired except
of such acquisition by Government is for Public use or in the interest of
defence, such safety public order, public morality or public health. It also
provides that when ones property is compulsorily acquired provisions must
be made for prompt payment of fair and adequate compensation prior to the
taking of possession or acquisition of the property and that the right of
access to a Court of law by any person with an interest in or right over the
property should be provided for;-

In the instant case the defendant moved onto the suit land comprised of LHR
Vol 902 Folio 7 at Alero - Gulu District without the consent of the plaintiff
who is the registered proprietor thereof. Contrary to the provisions of section
73(1) of the Land Act the defendant commenced and executed public works,
a public road, on the suit land without entering into a mutual agreement
with the plaintiff. The conduct of the defendant amounted to compulsorily
depriving the plaintiff of his property rights over the land comprised in L.H.R
Vol 907 Folio 7 at Alero - Gulu District in that by the Force of Section 5 of
the Roads Act that part of the property comprising the road and the road
reserves is taken out of the control possession and ownership of the plaintiff.
The plaintiffs property rights over the suit land is further affected by the fact
that contrary to the constitutional protection of an individual's property
right in article 26(2) of the Uganda Constitution, the plaintiff was deprived of
his interest in and right over the suit land without compensation. In as far
as the Government took over part of the plaintiff s land without promptly
paying fair and adequate compensations in breach of the provision of article
26, the plaintiff s constitutional property rights were adversely affected. I
accordingly answer the third issue in the affirmative.

With regard to the fourth issue whether the plaintiffs have suffered any
damages or loss as a result of the acts of the defendant PWI Onegi Obel and
the second plaintiff and its operations as a ranch/farm have been adversely
affected by the construction of the road in that;
1.
People and animals have unrestricted access into the farm subjecting the
farm animals to the risk of disease infection.
2.
The road passes only 100 meters away from the cattle dip thus blowing dust
into the dip with the danger of eventually silting the dip.
3. The fuel tanks/pumps and rice mills on the farm became too close to
the road requiring their relocation at great expense.
4. The ranch was non open to the public for the whole length of the road
of 8 kilometres.
5. The farm or ranch house became inhabitable because it was now too
close to the road and it now required to be relocated at great costs.

PWI Onegi Obel testified that he himself as the registered proprietor of the
suit land suffered damages and loss in the following ways;-
1.
The defendant excavated murrum in seven spots on the suit land leaving
gaping craters which fill up with water thus becoming a hazard to both
animals and people. This degraded and depreciated the suit land.
2. By constructing the road through the suit land the plaintiff lost that
part of the suit land covered by road and the road reserve.
3. He lost the bridge he has constructed on the suit land because it
became
public property as it connected the road built through the suit land.

PW2 Openytho Francisco Pinchwa who did a valuation of the damages and
loss sustained by the plaintiffs as a result of the construction of the road
through the suit land, the report of which is exhibit P.7 on the court record,
testified that in replacement costs of the plaintiffs infrastructure on the suit
land destroyed or rendered irrelevant the plaintiff stood to lose as follows;-
a.
Replacement costs of the farm or ranch house shs 112,000,000/=
b. Replacement cost of two fuel tanks shs 92,195.415/=
c. Replacement value of the cattle dip
d. The rice and cereal processing plant - building and machinery shs
60,000,000/=

That Mr. Madrama submitted that the ranch or the second plaintiff was the
vehicle of the plaintiffs’ dreams after a long dedicated public service. He
contended that the way the Construction of the road has affected the first
plaintiff evokes in him emotional stress. Counsel argued that the intrusion
on the 1st plaintiffs land without compensation makes this all the sadder.
He submitted that the acts of the defendant caused the first plaintiff loss
and damages.

The only evidence regarding this issue is that adduced on behalf of the
plaintiffs by PWI Onegi Obel and PW2 Openytho Francisco Pinchwa. Except
for averring in his WSD that the complainants were compensated. The
defendant did not adduce any evidence to contradict the evidence of the two
witnesses for the plaintiffs. The only inference to draw is that the plaintiffs
sustained damages and loss as a result of the construction of the road
through such damages and loss may not measure to the quantum alleged. I
also take the view that the first plaintiff as the registered proprietor also
sustained damages and loss as testified to by PWI Onegi Obel The 4th issue
is accordingly answered in the affirmative
This finally brings me to the last issue which is whether the plaintiffs are
entitled to remedies and if any, which remedies.
In their amended plaint, the plaintiffs prayed for the following remedies III
paragraph 8;-
a.
General and special damages for trespass and breach of statutory duty to
the first plaintiff as in paragraph 7 (i). (ii) (iii), (iv) and (v) of the plaint.
b. Compensation or damages in lieu thereof as stipulated in paragraph
7(i)(ii)(iii)(iv) and (v) of the plaint.
c. General and exemplary damages under paragraph (vi), (vii) and (viii) of
the plaint to both plaintiffs for arbitrary and unconstitutional behavior and
acts of the defendant's servants or as determined by Court and for breach of
law generally.
d. Declaratory judgment and orders that
i.
The plaintiffs are entitled to notice prior to the construction
ii. on the suit property.
iii. The act of constructing a road and taking over the plaintiff's private
bridge is in violation of the plaintiff's fundamental rights and freedom.
iv. The plaintiffs are entitled to compensation and or vacant possession
of the premises.
v. A declaration that the acts of the defendant in constructing the road
as the defendant did are illegal and contrary to law.

I shall first of all deal with the remedies in paragraph 8 (d) relating to
declaration Judgments and then I shall revert to the prayers in paragraph
8(a) (b) and (c).
The law allows a party to seek and the court to grant a declaratory
Judgment or order. That this is the position is to be found in the provisions
of order 2 rule 7 of the Civil Procedure Rules which is in these terms;-
“7 No suit shall be open to objection on the ground that a merely declaratory
Judgment or order is sought thereby and the Court may make binding
declaration of rights whether any consequential relief is or could be claimed
or not”

That this court has the power to make declaratory Judgments and orders
was expounded by Lindley MR in Ellis vs. Duke of Bedford [189911 Ch.
494 when interpreting Order XXV rule 5 of the Procedure Rules of England
which is pari material with our Order 2 rule 7 when he said at page 514-
515;-
“Moreover now, under the Judicature act, actions can be brought merely to
declare rights and this is an innovation of a very important Kind. I am
referring to Order XXV rule 5 which says "No action shall be open to
objection on the ground that a merely declaratory Judgment or Order is
sought thereby and the court may make binding declarations of right
whether any consequential relief is or could be claimed or not”. “Having
regard to that rule, it appears to me impossible now to say that one grower
could not maintain such an action as this, on behalf of himself and all other
growers of fruit and vegetables, to assert preferential rights to which he says
the whole class of growers are entitled”.
A declaratory judgment according to the authorities can be made in favour of
a party whether he shows the existence of a cause of action or not provided
that he shows that he is interested in the subject matter of the declaration
See Guaranty Trust Company of New York vs. Hannay & Company
LIMITED [1915]2 K.B. 536 at page 562 where Pickford Lt. held inter alia
while interpreting the same rule;-
“--------------------1 think the effect of the rule is to give general power to
make a declaration whether there be a cause of action or not and at the
instance of any party interested in the subject matter of the declaration. It
does not extend to enable a stranger to the transaction to go and ask the
court to express an opinion in order to help him in other transactions”.

The effect of Order 2 rule 7 is finally summarized in the above case in the
speech of Bankers L.J at page 572 while interpreting the English Judicature
Act 1873 S. 100 and the English Order XVI rule 1;-
“In every action there must be a plaintiff who is the person seeking relief
(Judicature Statute Act 1873,S.100), or to use the language of Order XVI,r.1,
a person in whom a right relief is alleged to exist, whose application to court
is not to be defeated because he applies merely for a declaratory judgment or
order and whose application for the declaration of his right is not to be
refused merely because he can not establish a legal cause of action. It is
essential, however that a person who seeks to take advantage of the rule
must be claiming relief that relief is not confined to relief in respect of the
cause of action it seems to follow that the word itself must be given its
fullest meaning. There IS however one limitation which must always be
attached to it that is to say the relief claimed must be something which it
would not be unlawful or unconstitutional or unequitable for the Court to
grant or contrary to the accepted principles upon which the Court exercises
its jurisdiction”.

In paragraph 8 (d)(l) of the plaint the plaintiffs pray for a declaration that
they were entitled to notice prior to the construction of the road on their suit
private property. There does not appear to be any legal requirement that
prior to execution of public works on private property, the authorized
undertaker has to give notice to the owner or occupier of the said property.
The only requirement for notice is contained in Section 72(1) of the Land Act
relating to an officer of Government who finds it necessary to encamp on
private property in order to execute his official duties. In such a case an
officer is obliged to give a notice of not less than three days of the proposed
entry. In the instant case this was not an encampment by an officer of
Government on the plaintiffs property for purposes of carrying out his duties
No declaration will therefore issue in respect of this prayer;-

In paragraph 8(d) (ii) of the plaint the plaintiffs pray for a declaration that
the act of the defendant of constructing a road on their property and of
taking over their private bridge is in violation of their fundamental rights.
There is overwhelming evidence the suit land in owned by the first plaintiff
as indeed I did find in this Judgment. There is also uncontested evidence
that the plaintiffs constructed the bridge for the purpose of better carrying
out the operation of their ranch. In discussing issue 3 above I found it as a
fact that the construction of the road and the taking over of the bridge by
the defendant was in violation of the property rights of the individual as
guaranteed by the constitution in Article 26 and 237. This being the case the
plaintiff are entitled to a declaration that the construction of the road and
the taking over of the plaintiff's private bridge is in violation of the plaintiff's
fundamental constitutional property rights.
The plaintiffs seek in paragraph 8(d) (iii) of the plaint a declaration that the
plaintiffs are entitled to compensation and or vacant possession of the
property. Article 26(2) (b )(i) of the constitution provides that no person shall
be compulsorily deprived of property of any description except where prompt
payment of fair and adequate compensation has been made prior to the
taking of possession or acquisition of the property. In the instant case
though the defendant did not follow the procedure laid down in Section 73(1)
of the Land Act and Article 26(2) (a) and (b) (ii) the deprivation of the
plaintiff's right in and interest in the suit land amounts to compulsory
acquisition for which the plaintiffs have a right to compensation. It is
therefore declared that the plaintiffs are entitled to compensation.

With regard to the declaration of the plaintiff's entitlement to vacant

possession, PWI Onegi Obel after recognizing that the road is in place and
intended to cater for the public expressed the opinion that he would rather
opt for damages than vacant possession. The plaintiff having foregone his
right to vacant possession a declaration to that effect can not issue.

Lastly in paragraph 8(d) (iv) the plaintiffs pray that a declaration issues to
the effect that the acts of the defendant in constructing the road and taking
over the bridge are in breach of statutory duty because they were done
contrary to the provisions of section 73(i) and 43 of the Land Act and Article
26 and 237 of the Constitution of Uganda. The acts of the defendant are
accordingly declared illegal and contrary to law.

I now revert to paragraph 8(a) (b) and (c) of the plaint. In Paragraph 8(a) the
plaintiff pray for general and special damages for trespass and statutory
breach because as a result of the actions of the defendant;-
(i) The plaintiffs have to relocate the residence on the ranch, stores
and workers quarters.
(ii) The plaintiffs have to construct a new cattle dip.
(iii) Have to construct two new fuel tanks at a cost of shs 150,000,000/=
to replace t hose affected by the construction of the road.
(iv) The plaintiffs bridge valued at shs 500,000,000/= was taken over by
the defendant.
(v) The suit property is now open to human traffic leaving it susceptible
to annual disease infection and incidences of theft and insecurity. This now
necessitates the construction of a shs 100,000,000/= barbed wire fence on
both sides of the road.
Except for (v) above which is based on trespass for a claim for general
damages the other particulars of damages in (i),(ii),(iii) and (iv) above are
claims of special damages. It is now trite that special damages must be
specifically pleaded and strictly proved See Bhagal Vs Barbidge & Anr
[1975] EA 11 and Consulting Gas Engineering Co Ltd Vs Bitature & Ano
SCCA 36/94.

In (i) the plaintiff claim that the cost of relocating the ranch house farm
structures and workers quarters and averred that Costs would be proved in
evidence during the hearing. The plaintiffs by pleading like that failed to
plead the special damages specifically. In an attempt to prove what it would
cost to relocate the above PWI Onegi Obel did not suggest a figure, PW2
Opentho Francisco Pinchwa an Engineer who carried out a valuation of the
property in question testified that the cost of relocating the ranch house was
shillings 112,000,000/=. I am of the view that instances like the present
case where a property has been affected by the act of Government or any
person for that matter, the measure of damages or compensation would be
the value of the property affected but not the project costs of building a
similar property in another location. The above aside, the plaintiffs have not
pleaded their special damages in connection with the ranch house
specifically nor does the valuation of PW2 Openytho Francisco Pinchwa
strictly prove it.

In respect of paragraph (ii) above the plaintiff claim the costs of constructing
a new cattle dip. The cost of such a dip is not pleaded but is averred in the
plaint that the costs would be adduced in evidence at the trial. At the trial
PW2 Openytho Francisco Pinchwa did not assign the costs of building a new
dip. Special damages can not be awarded when they have not been proved at
all nor pleaded.
Paragraph (ii) is in respect of the construction of two fuel tanks. In the plaint
the plaintiffs claims their costs to be over shs 150,000.000. PW2 Penytho
Francisco Pinchwa in his testimony put the cost of constructing these tanks
at shs 92,195,415/=. Here again thought this time the plaintiffs have
claimed a figure they have failed to strictly prove that claim.

With regard to paragraph iv the plaintiffs in their pleadings claim shs

500,000,000/= in compensation for their bridge that was taken up by the
defendant. PW2 Openytho Francisco Pinchwa in valuation put the amount
for compensation at shs 534,336,000/= the figure arrived at by PW2
Opentho in no way strictly proves the special damages which appears to be
based on guess work. I besides find a difficulty with the valuation of PW2
Opentho Francisco Pinchwa which again appears to be based on the costs of
building a new bridge. In any case the plaintiffs are not claiming that they
are going to conduct an alternative bridge. The measure of special damages
in my view ought to have been the value of the present bridge.

Under (v) the plaintiffs claim shs 100,000,000/= being the costs of building
a barbed wire fence on both sides of the road as security for the cattle on the
ranch.
They argued that the construction of the road exposed the cattle to human
and animal traffic thus making them very susceptible to contracting
diseases. Instead of justifying this claim and proving that indeed such s
fence would cost, the sum claimed, PW2 Openytho Francisco Pinchwa in his
valuation report came up with a staggering figure of shs 1,249,387,000/= as
the cost of fencing and a proposal that the fence be in chain links a thing
the plaintiffs never aimed. Because of this the plaintiffs failed to strictly
prove their claim of special damages in this regard.
Paragraph 8(b) which is for compensation or damages for the particulars of
damages under paragraph 6(i) - (v) has been covered in that the
compensation or damages being claimed are the special damages I have first
considered.
I now turn to the claim for general damages contained in Paragraph 8(a) and
8(c) of the plaint. It is now trite that general damages are at the discretion of
the court and are intended to place the injured party in the same position in
monetary terms as he would have been had the act complained of not taken
place. See Phillip vs. Ward [1956] I AU ER 874.

In the instant case by the wrongful act the plaintiffs were deprived of that
land covered by the width and breathe the defendants unlawfully
constructed on the suit land. By the construction of the said road the
plaintiffs are likely to experience great inconvenience in running their
business of ranching, they have to shift the ranch house, dip and fuel
station thus incurring expenses of relocation. They had their bridge
constructed at one end of their ranch taken over and made public property.
For the safety of the cattle on the ranch, the plaintiff will have to incur the
expenses of fencing both sides of that road in barbed wire. By the acts of the
defendants trespass the plaintiffs have incurred great financial loss and
inconvenience besides their constitutional rights of owning property being
infringed. In the process the defendant are in breach of statutory duty which
also attracts general damages. To be restored to the position plaintiffs were
in before the wrongful acts of the defendant requires an award of damages in
monetary terms. I have not made an award in special damages not because
these were not incurred but because these were not proved to the required
standard. For instance having found the defendant deprived the plaintiffs of
a bridge they built, it can not be said the plaintiffs did not incur loss or
damages. Taking all these circumstances I award to the plaintiffs by way of
general damages shs 650,000,000/= (Six hundred fifty million only).

The plaintiffs' prayer in paragraph 8(c) is for exemplary damaged for

arbitrary and unconstitutional conduct and acts of the agents of the
defendant. An award of exemplary damages is made when the acts
complained of are acts of officers of the State done arbitrarily, oppressively
and unconstitutionally to the prejudice of the plaintiff. Exemplary damages
are not awarded for every wrongful of an officer of state.

In the instant case the officer of the Government namely the Ministry of
works, started construction of the road through the suit land and continued
with the said works even after being informed the 1st plaintiff was the
registered proprietor. This was done in utter disregard of the property rights
of the 1st plaintiff. On completion of the road amid protests from the
plaintiffs the defendant took over the plaintiff's private bridge and made it
public property. All this was done contrary to sections 73 (1) and 42 of the
land Act and the provisions of Articles 237 and 26 of the Constitution which
recognize the right to property and lay down the procedure to acquire private
property. One of the conditions of acquiring private property by Government
is to pay prompt fair and adequate compensation to the owner but no
compensation was made in total disregard of the plaintiffs' proprietary
rights. I find the conduct of the agents of the Government in this regard
arbitrary, oppressive, and unconstitutional for which the plaintiffs are
awarded the sum of shs 25,000,000/= in exemplary damages.

In the result Judgement is entered for the plaintiffs in the following terms;-
a.
It is declared that;-
i.
The acts of the defendant of constructing a road and taking over the
plaintiffs’ private bridge is in violation of the plaintiffs fundamental property
rights.
ii. The acts of the defendant in constructing the road as he did is illegal
and contrary to the law.
b.
The defendant shall pay to the plaintiff in general damages the sum of shs
650,000,000/=.
c.
The defendant shall pay to the plaintiffs, exemplary damages in the sum of
shs 25,000,000/=
d. The defendant shall also pay the taxed costs of this suit.

Signed JUSTICE .A. KANIA JUDGE

5.4.2006

Phillip Karugaba v Attorney General ((Constitutional Petition No. 11 of

2002)) [2004] UGCC 3 (4 April 2004);

JUDGMENT OF C.N.B. KITUMBA, JA

The Petitioner, Mr. Phillip Karugaba, is a practising advocate. He filed this

petition against the Attorney General under Article 137 of the Constitution
seeking for a declaration that:

"Rule 15 of the Rules of the Constitutional Court (Petition for Declarations

under Article 137 of the Constitution) Directions, 1996 is inconsistent
with Article 26 (2) of the Constitution"
The petitioner swore an affidavit in support of the petition. He avers that he
was one of the petitioner's counsel in Constitutional Petition No. 2 of 2001.
Joyce Nakacwa Vs Attorney General and 2 Others, in which the petitioner
was seeking for declarations and redress. The petitioner passed away before
the determination of her petition. This court ruled that according to the
provisions of rule 15 of the Rules of the Constitutional Court (Petition for
Declaration under Article 137 of the Constitution) Directions, 1996 the
petition had abated with the death of the sole petitioner.In answer to the
petition the respondent disputed the petitioner's claim in respect of the
above mentioned rule 15 and contended that it is not inconsistent with
article 26 (2) of the constitution.
During the hearing, the petitioner appeared in person and Ms Margaret
Apiny, Senior State Attorney, represented the respondent. The petitioner
contended that rule 15 of the Rules of the Constitutional Court (Petition for
Declarations under Article 137 of the Constitution) Directions, 1996 is
unconstitutional because it extinguishes the petitioner's right of action and
deprives his or her estate of property without compensation. This is contrary
to article 26(2) of the Constitution which provides for protection from
deprivation of property without compensation.
He submitted that in law property means real property personal property
and intangible property like chose in action. He argued that according to the
late Nakacwa's petition, which is annexture "A" to the affidavit in support of
the instant petition, she was a victim of brutal tortious actions by the Police,
Kampala City Council and Local Council officials, for which she could get a
redress.

He argued that the right to file a petition in the Constitutional Court

amounts to "a chose in action."

In support of his submission he relied on a Concise Dictionary of Law and

Halsbury's Laws of England Fourth Edition Vol. 6 paragraphs 3 & 8. The
petitioner urged this court to follow the authority of Shah V Attorney
General (No. 2) [1970] E.A 523. He submitted that in that case, Shah had
secured a judgment of the court. The government attempted to take away
the benefits of that judgment by an act of Parliament. The Constitutional
Court was called upon to interpret article 8 of the 1966 Uganda
Constitution, which is similar to article 26 of the present Constitution. The
court held that a judgement was property and it was unconstitutional to
deprive Shah of the same without compensation.
Mr. Karugaba submitted that the issue of death should not make any
difference whether the petition continues or not. He argued that in general
all actions continue after the death of the plaintiff with the exception of only
two namely; action for defamation because there is no property in one's
name and an action for a contract for personal service.
In reply, Ms Apiny learned Senior State Attorney, disagreed. She contended
that a constitutional petition is not a chose in action and Constitutional
Petition No. 2 of 2001 was not one. The Petitioner was claiming for a
monetary redress but never got it because of her demise before the petition
was concluded. As the claims were of a personal nature, they were
extinguished by her death. She argued that her petition was, therefore,
distinguishable from Shah V Attorney General (No. 2) (supra).

The issue for determination in this petition is whether Rule of 15 the Rules
of the Constitutional Court (Petition for Declarations under Article 137 of the
Constitution) Directions, 1996 is inconsistent with article 26 (2) of the
Constitution.

Rule 15 provides:

"15. (1) A petition shall abate by the death of a sole petitioner or of the
survivor of two or more petitioners. (2).,

(3) and article 26(2) of the Constitution provides:

"26 (2) No person shall be compulsorily deprived of property or any

interest in or right over property of any description except where the
following conditions are satisfied-

1. the taking of possession or acquisition is necessary for public use or in

the interest of defence, public safety, public order, public morality or
public health; and
 2. the compulsory taking of possession or acquisition of property is made
under a law which makes provision for-

(i) prompt payment of fair and adequate compensation, prior to the taking of
possession or acquisition of the property; and

(ii) a right of access to a court of law by any person who has an interest or
right over the property."

Rule 15, which is in issue, applies to petitions, which come to the

Constitutional Court under article 137 of the Constitution. It is necessary to
internalise the jurisdiction of this court under article 137 of the Constitution
in order to decide whether Rule 15 is unconstitutional as alleged.

The Supreme Court and this Court have held that the jurisdiction of this
Court under article 137 of the Constitution is to interpret the Constitution
and not to grant redress. See Ismael Serugo Vs Kampala City Council and
Another Constitutional Appeal No. 2 of 1998 and The Attorney General of
Uganda Vs David Tinyefuza Constitutional Appeal No. 1 of 1998. Charles
Kabagambe V Uganda Electricity Board Constitutional Petition No. 2 of
1999.
In its ruling on the preliminary objection on its jurisdiction in Constitutional
Petition No. 2 of 2001 Joyce Nakachawa Vs The Attorney General and Two
Others this court dwelt at length on the subject. Quoting from the decisions
of the Supreme Court and its own decision, this Court reaffirmed that its
jurisdiction under article 137 is to interpret the Constitution. This court
stated thus:
"First we deal with the issue of jurisdiction. This court has recently
pronounced itself on this matter in the case of Alenyo Vs The Attorney
General and 2 others (supra) in which we followed the Supreme Court
decisions in Serugo (supra) and David Tinyefuza (supra). We stated:-
"Article 137 (1) provides:
 Any question as to the interpretation of this Constitution shall be
determined by the Court of Appeal sitting as the Constitutional Court.'

The Constitution does not define the word "Interpretation." However article
137(3) gives a clear indication of what the word means. It states:
'137(3) a person who alleges that:-

1.An Act of Parliament or any other law or anything in or done under the
authority of any law; or

1. Any act or omission by any person or authority, is inconsistent with or

in contravention of a provision of this Constitution, may petition the
Constitutional Court for a declaration to that effect, and for redress
where appropriate.'

We hold the view that the allegations made to the Constitutional Court, if
they are in conformity with article 137(3), give rise to the interpretation of
the Constitution and the Court has the jurisdiction to entertain them.

In the instant petition, the petitioner alleges that the Law Council is guilty of
commissions and omissions, which are inconsistent with or in contravention
of the Constitution. He has petitioned this court for a declaration to that
effect. In our judgment these are the type of actions envisaged by article 137
(3)(b). He is not stating as a fact that he has a definite right that should be
enforced. He is alleging that the conduct of the Law Council has violated his
rights guaranteed by specified provisions of the constitution and this court
should so declare. In order to do that the Court must determine the meaning
of the specified provisions of the Constitution allegedly violated and whether
the conduct complained of has actually violated those provisions. The
carrying out of the exercise by the court is an interpretation of the
Constitution. It is not an enforcement of rights and freedoms. The court is
being called upon to interpret the Constitution. It can make a declaration
and stop there or it can grant redress if appropriate. Whether the alleged
acts and omissions of the Law Council contravene or are inconsistent with
the Constitution is not relevant to the issue of jurisdiction. It is what the
court is called upon to investigate and determine after it has assumed
jurisdiction. It is not relevant either, that there is a remedy available to the
petition somewhere else. That alone cannot deprive the Court of the
jurisdiction specifically conferred on it by article 137." (underlining mine).

This court held that it deals with maters of redress under article 50 only
when this is done in the process of constitutional interpretation.

I respectfully agree with the decision in Shah V Attorney General (No.2)

supra) that a judgment of the Court is property. I also note the definition of
"chose in action" in Halsbury's Laws of England (supra) is as follows.:.

"The meaning of the expression "chose in action" has varied from time,
but is now used to describe all personal rights of property which can only
be claimed or enforced by action and not by taking physical possession"

To me the above definition connotes a suit where some redress is sought.

However, it is my considered view that a right to file a constitutional petition
is not property in terms of article 26 (2) of the Constitution. A Constitutional
Petition under article 137 is a legal action of special nature. One may file a
Constitutional Petition in which this court may make a declaration and stop
there without granting a redress. There have been a number of
Constitutional Petitions before this court in which if the petitioners had
passed away before conclusion, their estates would have had no interest.

The petitioner was counsel in Constitutional Petition No. 2 of 2001 in which

the deceased petitioner had sought for interpretation of the Constitution and
redress. I think that this influenced the petitioner in his pleadings and
submission before court which, with due respect, I do not agree with.
This court has specific jurisdiction as stated above. In a case where the
estate of the deceased petitioner seeks redress, the action can be instituted
in a court of competent jurisdiction and if a question of constitutional
interpretation arises, the same can be referred to this court under article
137 (5) of the Constitution.
Section 13 of the Law Reform Miscellaneous Provisions Act (cap. 74) provides
for survival of action after the death of the deceased as

follows:-
"13.(1) Subject to the provisions of this section, on the death of any
person after the commencement of this Act, all causes of action subsisting
against or vested in him shall survive against, or as the case may be, for
the benefit of his estate:
Provided that this subsection shall not apply to causes of action for
defamation or seduction or for inducing one spouse to leave or remain apart
from the other or to claims under section 22 of the Divorce Act for damages
on the ground of adultery."
The late Nakachwa was seeking for "compensation/redress for unlawful
imprisonment, pain and suffering, embarrassment, humiliation and loss of
her child."

A civil action can be instituted in a competent court for the benefit of her
estate in respect of that. This would be merely for compensation/redress but
not for constitutional interpretation.
In the result I find that rule 15 of the Rules of Constitutional Court (Petition
for Declarations under article 137 of the Constitution) Directions, 1996 is
not inconsistent with article 26 (2) of the constitution.
I would accordingly dismiss the petition for lack of merit with no orders as to
costs.

Dated at Kampala this 4 th day of April 2003.

 I have had the chance to read in draft the leading judgment prepared
by My Lord Justice Kitumba, JA. I do agree with her conclusion that the
petition must fail I however, have a few observations of my own to make on
the matter.

The Petition is brought under article 137(3) of the Constitution of the

Republic of Uganda and under Modifications To The Fundamental Rights
and Freedom (Enforcement Procedure) Rules 1992. Directions. 1996 (Legal
Notice No.4 of 1996). The petition is brief and reads:-

"1. Your Petitioner is a person having an interest in the following

matters being inconsistent with the Constitution whereby your
Petitioner is aggrieved;

(a) Rule 15 of The Rules of the Constitutional Court (Petition for

Declarations under Article 137 of the Constitution) Directions
1996 is inconsistent with Article 26(2) of the Constitution;

2. Your Petitioner states that the said Rule 15 of The Rules of the
Constitutional Court (Petition for Declarations under Article 137 of the
Constitution) Directions 1996 as inconsistent with Article 26(2) of the
Constitution in so far as it deprives the estate of a deceased sole
petitioner of a chose in action being property, without compensation;
3. Therefore your Petitioner prays that the court may;

(a) grant a declaration that

(i) Rule 15 of the Rules of the Constitutional Court (Petition for Declaration
under Article 137 of the Constitution) Directions, Legal Notice No.4 of 1996
is inconsistent with article 26(2) of the Constitution;
(b) make no order as to costs

The Petition was supported by an affidavit of the Petitioner to which he

attached as annexture A. a photocopy of Constitutional Petition No.2 of

Annexture 'B' to that affidavit is a copy of the proceedings in this court in

respect of that Constitutional Petition No.2 of 2001.

The respondent filed an answer in which he contended that the Petition was
misconceived He denied that rule 15 of Legal Notice No.4 of 1996 is either
inconsistent with Article 26(2) of the Constitution or deprive the estate of a
deceased sole petitioner of a chose in action without compensation. He
contended that a chose in action is not property within the meaning of
Article 26(2) of the Constitution.

The answer was supported by an affidavit of Joseph Matsiko. Principle State

Attorney, in the Directorate of Civil Litigation in the Attorney General's
Chambers. The affidavit was sworn on the 11th of December 2002.

It is clear from the pleadings that this petition is based on Nakacwa's

constitutional Petition (supra) In that petition, upon proof of Nakacwa. the
sole petitioner's death, this court ordered that the petition was abated in
terms of rule 15 of Legal Notice No.4 of 1996 which provides:

" (1) A petition shall be abated by the death of a solepetitioner or of the

survivor of the two or more petitioners.

Mr Karugaba the petitioner contended that the: above rule is inconsistent

with article 26(2) of the Constitution which guarantees the right against
taking away ones property without payment of adequate compensation He
argued that by abating the petition on the death of the sole petitioner, the
rule deprives the estate of the deceased of the deceased's chose in action,
which is property, without payment of adequate compensation This, he
argued, is inconsistent with article 26(2) of the Constitution. He cited and
relied on Shah v Attorney General (N0.2) (1970) EA 523.
Ms Apiny. learned Senior State Attorney for the respondent, did not agree.
She contended that rule 15 is not inconsistent with article 26(2) of the
Constitution because it (rule 15) applies only to Constitutional Petitions. In
her view article 26(2) applies to ascertained property She argued that Shah's
case (supra) was distinguishable from Nakacwa:s case In the former,
judgment had been obtained and therefore, the property was ascertained. In
the latter case however judgment was not obtained as the petition was not
concluded The property was thus not ascertained.

The sole issue in this petition is whether rule 15 of Legal Notice No.4 of 1996
is inconsistent with article 26(2) of the Constitution The task of this court is
therefore to determine the constitutionality of the impugned rule 15. In a
petition of this type, the principle applicable is the purpose and effect of the
impugned law. It must be taken into consideration. If its purpose is
inconsistent with the article of the Constitution then it shall be declared
unconstitutional. Similarly, if its purpose is innocuous but the effect of its
implementation is inconsistent with the article of the Constitution, then the
impugned provision shall still be declared unconstitutional Again where both
the purpose and the effect of implementation of the impugned provision are
inconsistent with the article of the Constitution the provision shall also still
be declared unconstitutional. This principle was stated in the Canadian case
of The Queen vs Big Drug Mart Ltd. (others Intervening) 1996 LRC (Const)
332B and was approved by the Supreme Court of Uganda in Attorney
General vs Abuki Salvatori, Constitutional Petition Appeal No.1 of 1998.

In the instant case, the complaint of the petitioner is against the effect of the
implementation of the impugned rule 15 To determine whether the effect of
implementing that rule is inconsistent with article 26(2) of the Constitution,
it is important to know what a chose in action means The meaning of chose
in action as can be discerned from the Hulsbary's laws of England 4th
Edition Vol 6 paragraphs 1 - 8. may be stated to be:-
" a right of proceedings in a court of law to procure the payment of a sum of
money or to recover pecuniary damages for infliction of a wrong or non-
performance of a contract".

Clearly the right of action in a court of law must be:-

1. to procure the payment of a sum of money or

2. to recover pecuniary damages for infliction of wrong or non-
performance of a contract.

A right of proceeding seeking an interpretation of a provision of the

Constitution under article 137 (3) of the Constitution would not fall under
the above definition. Such a petition does not seek to procure the payment of
a sum of money or to recover pecuniary damages for infliction of a wrong or
non performance of a contract It primarily seeks an interpretation of a
provision of the Constitution

Ms Apiny submitted that rule 15 applies only to constitution petitions. I

agree. A claim for redress which is included in a constitutional petition is
incidental to the petition and therefore severable from the petition. The right
of action in a court of law to recover pecuniary damages for a tortious act or
non-performance of a contract is not affected by an abatement of the petition
under rule 15. It could be pursued in a competent court if the constitutional
petition to which it is incidental is abated.

Nakacwa's claim for redress in Constitutional Petition No.2 of 2001 was for
personal injuries. That could meet an obstacle even in a competent court
because it is trite at common law that a right of action in a court of law to
recover pecuniary damages for personal injuries is neither assignable nor
does it survive on the death of the injured. Claim for such personal injuries,
for the benefit of the estate of the injured who died from the injuries, was
made possible by the passing of the law Reform (Miscellaneous Provisions)
Act (Cap) 74. Section 13 thereof in brief provides:
"Subject to the provisions of this section, on the death of any person after
the commencement of this Act all causes of action subsisting against or
vestedin him shall survive against or as the case may be for the benefit of
his estate Provided that this subsection shall not apply to causes of action
for defamation or seduction or for inducing one spouse to leave or remain
apart from the other or to claims under section 22 of the Divorce Act for
damages on ground of adultery.."

That is why such a claim for personal injuries is brought by the estate of the
deceased under that specific law

In my view, the right of proceeding in a court of law by Nakacwa to recover

pecuniary damages for the tortious wrongs inflicted on her. could be
pursued by her estate for the benefit of her dependants in a competent
court. But this would have to be done under the law Reforms (Miscellaneous
Provisions) Act (Cap) 74. That right of action did not abate when
constitutional petition No.2 abated under rule 15. What was abated was the
right of action to petition the Constitutional Court seeking the interpretation
of a provision of an article of the Constitution. Rule 15 of Legal Notice No.4
of 1996 is therefore, not inconsistent with article 26(2) of the Constitution.

Ms Apiny sought to distinguish Shah v Attorney General (supra) from

Nakacwa's case (supra) on the ground that in the latter, judgment was not
yet obtained and therefore, no property of Nakacwa had yet been
ascertained. I do not agree. A chose in action is defined to be a right of
action in a court of law to recover a sum of money or a pecuniary damages
for tortious wrong or non-performance of a contract. That has been held to
be property. It is not necessary that the right of action must first be
translated into a judgment to be property However, in Nakacwa's case, the
injured was dead and the incidental claim was for damages for personal
injuries..
In the result. I agree with my learned sister Kitumba. JA. That there is no
merit in the petition and would dismiss it As all the other justices agree, the
petition be and is hereby dismissed. We make no order as to costs as this is
a matter of public interest

Dated at Kampala, this 4 th day of April 2003.

JUDGMENT OF A.E.N. MPAGI-BAHIGEINE, JA.

I agree with Hon. Lady Justice Kitumba that this petition lacks merit and
should be dismissed. This was a matter for enforcement under Article 50
before a court of competent jurisdiction and not for interpretation, before
this court, under Article 137(3) of the Constitution. I have nothing useful to
add.Dated at Kampala this 4th day of April 2003.

JUDGMENT OF S.G. ENGWAU, JA

I had the benefit of reading in draft the lead judgment of Kitumba, JA and I
agree with her reasons and conclusion that this petition lacks merit. I have,
however, some few observations to mention on the matter for emphasis only
as hereunder: The petitioner has brought this petition under article 137 (3)
of the 1995 Constitution of Uganda and under Modifications To the
Fundamental Rights and Freedom (Enforcement Procedure) Rules 1992,
Directions, 1996 - Legal Notice No. 4 of 1996. He is seeking for a declaration
that rule 15 of the Rules of the Constitutional Court (Petition for
Declarations under Article 137 of the Constitution) Directions, 1996 is
inconsistent with Article 26 (2) of the Constitution in so far as it deprives an
action of a deceased sole petitioner of a chose in action being property,
without compensation. He also prays that no order as to costs be made
because this is a matter of public interest.
The petitioner swore an affidavit in support of his petition. He avers that in
Constitutional Petition No. 2 of 2001, Joyce Nakacwa Vs. Attorney General
and 2 Others, this court upon proof of the death of Nakacwa, ruled that her
petition had abated in accordance with the provisions of rule 15 of Legal
Notice No. 4 of 1996. In that petition, Joyce Nakacwa who was the sole
petitioner was seeking for constitutional interpretation/declarations and
redress. 'Unfortunately she died before the determination of her petition.

The respondent in his answer to the Petition, contended that rule 15 of Legal
Notice No. 4 of 1996, is neither inconsistent with Article 26 (2) of the
Constitution nor does it deprive an estate of a deceased sole petitioner of a
chose in action without compensation. It was his contention that a chose of
action is not property within the meaning of Article 26 (2) of the
Constitution. In his view, this Petition is, therefore, misconceived. The
Attorney General's answer was supported by the affidavit of Mr. Joseph
Matsiko, Principal State Attorney, dated 11th December, 2002.

The rule 15 of Legal Notice No. 4 of 1996, under challenge, provides:

"15 (1) A petition shall be abated by the death of a sloe petitioner or of the
survivor of the two or more petitioners.

and article 26 (2) of the Constitution provides:

" 26 (2) NO person shall be compulsorily deprived of property or any interest

in or right over property of any description except where the following
conditions are satisfied -

1. the taking of possession or acquisition is necessary for public use or in

the interest of defence, public safety, public order, public morality or
public health; and
2. the compulsory taking of possession or acquisition of property is made
under a law which makes provision for -
 (i) prompt payment of fair and adequate compensation, prior to the
taking of possession or acquisition of the property; and

(ii) (ii) a right of access to a court of law by any person who has an
interest or right over the property."

(iii) The petitioner, Mr. Phillip Karugaba, appeared in person. He

contended that rule 15 of Legal Notice No. 4 of 1996 is inconsistent
with Article 26 (2) of the

Constitution which guarantees a right of a person from deprivation of his or

her property without payment of adequate compensation. His argument was
that by abating the petition upon the death of Joyce Nakacwa, the above rule
extinguished her estate of a right of a chose in action, which is property,
without paying adequate compensation. Shah vs. Attorney General (No. 2)
[1970] EA 523 was cited as authority.

Ms. Margaret Apiny, Senior State Attorney, holds contrary view. She
distinguished Shah 's case (supra) from Nakacwa's case in that in the
former, judgment had been obtained and the property was, therefore,
ascertained. In the latter case, Nakacwa died before her petition was heard
and concluded. According to Ms. Apiny, property was therefore not
ascertained as envisaged under Article 26 (2) of the Constitution. She argued
that rule 15 of Legal Notice No. 4 of 1996 deals only with Constitutional
Petitions. Nakacwa's claim for redress in her petition was based on personal
injuries. In her view, learned Senior State Attorney submitted that
Nakacwa's claim for redress could be pursued in a competent court despite
the fact that her petition had abated under rule 15 of Legal Notice No. 4. of
1996.

I do agree with learned Senior State Attorney in view of the clear

provisions of section 13 of the Law Reform (Miscellaneous Provisions) Act
(Cap 74) which state thus:
 " 13 Subject to the provisions of this section, on the death of any
person after the commencement of this Act, all causes of action
subsisting against or vested in him shall survive against or as the
case may be for the benefit of his estate.

Provided that this subsection shall not apply to causes of action for
defamation or seduction or for inducing one spouse to leave or remain apart
from the other or to claims under section 22 of the Divorce Act for damages
on ground of adultery."

Clearly, from the above section, Nakacwa's claim for redress survived after
her death for the benefit of her estate or beneficiaries to be pursued in a
competent court. Her claim was based on a tortious action arising from
personal injuries. Section 13 of the Law Reform (Miscellaneous Provisions)
Act provides protection of that right from deprivation of property without
adequate compensation, in my view, that right of action did not abate under
rule 15 of Legal Notice No. 4 of 1996. It was her right of action to petition the
Constitutional court in which she was seeking for a constitutional
interpretation under Article 137 (3) of the Constitution which abated under
that rule. I would, therefore, agree with the respondent's submissions that
the provision of rule 15 of Legal Notice No. 4 of 1996 is neither inconsistent
with Article 26 (2) of the Constitution nor does it deprive an estate of a
deceased sole petitioner of a chose in action without compensation.

In the result, I would dismiss the petition with no order as to costs on

ground of public interest.

Dated at Kampala this 4 th day of April 2003.

JUDGMENT OF BYAMUGISHA, JA

The petitioner filed this matter under Article 137 of the Constitution
claiming that he has an interest in that Rule 15 of the Constitutional
Court/Petition for Declarations under Article 137 of the Constitution)
Directions 1996 is inconsistent with Article 26(2) of the Constitution. The
basis of this claim is that the said rule deprives the estate of a deceased sole
petitioner of a chose in action being property without payment of
compensation. It was his prayer that this court grants a declaration to the
effect that the said rule was inconsistent with the mentioned article. There
was a prayer for an order for costs.

An affidavit was sworn in support of the petition by the petitioner himself.

He deponed that he was one of the advocates who represented the late Joyce
Nakacwa in Constitutional Petition No.2/2001(a copy of the petition was
attached to the instant petition as annexture A). It is deponed that the late
Nakacwa passed away on the 23rd October,2002 before this court
determined the petition. On the 4th November,2002 when the petition came
up for hearing the court was informed of the demise of the petitioner and an
order was made to the effect that the petition would abate in accordance
with rule 15(supra). In paragraph 9 of the affidavit, the petitioner deponed
that in a petition such as the one Nakacwa had filed seeking inter alia,
orders for redress constitutes a chose in action and as such, it is personal
property of the petitioner. In paragraph 10 he deponed that Article 26(1) of
the Constitution recognises every person's right to own property and sub-
article 2 recognises the right of every person not to be deprived of property
without adequate compensation. It was contended in paragraph 12 of the
affidavit that the operation of rule 15 deprived the estate of the late Nakacwa
of property contrary to Article 26(2)(supra). He reiterated his earlier prayer
specifically enacted to compulsorily deprive him of the fruits of his judgment
that he was trying to enforce against the Government of the day. The
legislation made no provision for payment of compensation. Thus prompting
the constitutional reference.

In the matter now before us, the petitioner has not shown by his pleadings
how the abating of Nakacwa's petition under the rule deprived him of any
property. The claim was partly for redress. The tortious acts she complained
of were personal to her. If they survived her, then her estate can go to a
competent court under the provisions of Cap74. In my view the rule was not
specifically enacted to deprive either Nakacwa , her former advocate or her
legal representative of any property. It has been in existence since 1996. I do
not think it was aimed at anyone's property. The petitioner had the burden
to show that the rule is clearly inconsistent and incompatible with the
principles laid down in the Constitution. He did not.The rule in my view is
not inconsistent with Article 26 of the Constitution. The petition has no
merit. It will be dismissed with each party bearing its own costs.that the
impugned rule be declared as being inconsistent with the stated provisions
of the Constitution.

In his answer to the petition, the respondent through Mr Matsiko, a

Principal State Attorney deponed an affidavit. He stated that the petition has
no merit. He stated in paragraph 5 thereof that Nakacwa's constitutional
petition did not constitute property as alleged in the instant petition. He
averred in paragraphs 6 and 7 of the affidavit that rule 15 is in no way
inconsistent with the provision of the article being relied upon and it did not
deprive the estate of a deceased sole petitioner of property contrary to Article
26(supra).

When the matter came before us for disposal, the petitioner appeared in
person. The respondent was represented by Ms Apiny, Senior State Attorney.
In his submission, the petitioner rehearsed the history of Nakacwa's case.
He contended that when Nakacwa passed away, the administrator of the
estate was not allowed to take over the conduct of the petition. He submitted
that by extinguishing late Nakacwa's right of action, rule 15 deprived the
estate of property without compensation contrary to article 26(2)(supra)

He contended that a right of action is a form of personal property which is

protected under the article. He referred to the definition of the word property
contained in Concise Law Dictionary which is that property is anything that
can be owned. These include according to him, real, personal and intangible
property or chooses in action. He also referred to the definition of chooses in
action contained in Halsbury's Laws of England 4th Edition and contended
that a right of action arising of tort is a chose in action and therefore
personal property. The petitioner cited the case of Shah v Attorney-General
(No.2) [1970] EA 523 where a judgment obtained by Mr Shah was taken
away by an Act of Parliament. It was held in that case that the Constitution
protects all forms of property including intangible intangible ones. He
contended that the principle laid out in Shah's case applies to this case. He
further submitted that there are only two instances where death would
defeat a cause of action. The first instance is the case of defamation as there
is no property in the name and the second instance is a contract for
personal services. He contended that in all other claims, the action survives.
He concluded his submissions by stating that a right of action is property
and any rule that attempts to take it away must be declared
unconstitutional. He prayed that a declaration be made as prayed with no
order as to costs. He claimed that this was a matter of public interest.

In reply, the learned State Attorney submitted that the late Nakacwa's right
is not property. She relied on the definition of the word property contained in
Oxford Companion to Law paragraph 8 at page 212 which defines personal
rights to property that can be claimed or enforced. She submitted that the
late Nakacwa was claiming monetary redress but she never got. She
contended that the claim was of a personal nature and it was extinguished
by death and therefore no property accrued to her estate. She submitted
that the question of property goes hand in hand with ownership and that
property must be definite in order to be claimed. She stated the obvious that
Nakacwa's petition was not finalised and no awards were made. On Article
26(2), counsel contended that the property under that article must be
ascertained and its acquisition invites fair and adequate compensation. If
this is not done, it would amount to a breach of the constitution.
Commenting on Shah's case learned State Attorney submitted that the Local
Government Act was enacted specifically to defeat the judgment that was
property and ascertainable. She concluded her submissions by stating that
the petition failed to show the inconsistency with the article and it should be
dismissed with costs.

Before I deal with the substantive issue that was raised in this petition I
wish to refer to the record of this court in Nkacwa's petition. On the 4th
November the petitioner herein, who was counsel for the late, informed that
his client had passed away. He made an application for an adjournment of
the petition pending the appointment of a personal representative to take
over the conduct of the petition. The application for an adjournment was
opposed by Mr Bireije and Mr Mutyaba who were representing the first and
second respondents respectively. The basis of their opposition was rule
15(supra).In reply, the petitioner stated that rules of court were
handmaidens of justice and should not be used to defeat it. He went further
to state that the petition raised matters of constitutional importance
touching on the rights of women in this country and therefore it should be
heard and this court applies its constitutional mandate to do justice. In a
unanimous ruling we rejected the application for an adjournment and
confirmed that rule 15 was mandatory in that a petition abates by the death
of a sole petitioner and there was no rider at all. There was no appeal
against this ruling to a higher court by Mr Karugaba. In my view he should
have appealed against our ruling if he thought that our interpretation of the
rule was wrong. Instead he brought the instant petition claiming that he is a
person having an interest in the matter. He did not disclose the said interest
but that is not a matter of great moment at this time.
Turning to the merits of the petition, the complaint here is that the rule took
away Nakacwa's property in the petition contrary to Article 26 of the
Constitution. The article provides that:-
 1. "Every person has a right to own property either individually or in
association with others.
2. No person shall be compulsorily deprived of property or any interest in
or right over property of any description except where the following
conditions are satisfied -

(a) the taking of possession or acquisition is necessary for public use or in

the interest of defence, public safety, public order, public morality or
public health; and

(b)the compulsory taking of possession or acquisition of property is made is

made under a law which makes provision for- (I )prompt payment of fair
and adequate compensation, prior to the taking of possession or
acquisition of the property; and

(ii) a right of access to court of law by any person who has an interest

or right over the property.

None of the advocates who appeared before us cited any authority in which
the provisions of the article have been judicially considered. But the usual
rules of interpretation would be invoked and applied. The word property is
not defined in the article. The word means something capable of being
owned and ascertained. I agree with the definition of property that the
petitioner referred in his submissions. I think the petitioner has the burden
to prove that he is a person who had an interest or right over the property
either individually or in association with the late Nakacwa. He has also to
show that he was deprived of his property compulsorily by rule 15(supra),
and that there was no provision made for prompt payment of fair and
adequate compensation. This is how I understand the scope of Article
26(supra). In other words the petitioner has to bring himself within the
ambit of the article if he has to succeed.
I have perused the affidavit filed by the petitioner and failed to find any
statement which states that he owned any property with the late Nakacwa.
The right that Nakacwa had to bring a constitutional petition was in my view
personal to her and could not be assigned. I also do not think that it was
property that was capable of being compulsorily acquired and taken
possession of by anybody. The decision of Shah is distinguishable from this
petition. Mr Shah had a judgment debt-intangible property. A law was

specifically enacted to compulsorily deprive him of the fruits of his judgment

that he was trying to enforce against the Government of the day. The
legislation made no provision for payment of compensation. Thus prompting
the constitutional reference.

In the matter now before us, the petitioner has not shown by his pleadings
how the abating of Nakacwa's petition under the rule deprived him of any
property. The claim was partly for redress. The tortious acts she complained
of were personal to her. If they survived her, then her estate can go to a
competent court under the provisions of Cap74. In my view the rule was not
specifically enacted to deprive either Nakacwa , her former advocate or her
legal representative of any property. It has been in existence since 1996. I do
not think it was aimed at anyone's property. The petitioner had the burden
to show that the rule is clearly inconsistent and incompatible with the
principles laid down in the Constitution. He did not.The rule in my view is
not inconsistent with Article 26 of the Constitution. The petition has no
merit. It will be dismissed with each party bearing its own costs.

Dated this 4th day of April 2003.

C.K. Byamugisha

Justice of the Constitutional Court.

Pyrali Abdul Rasul Esmail v Adrian Sibo ((Constitutional Petition No 9 of
1997)) [1998] UGCC 7 (23 June 1998);

PYARALI ABDUL RASAUL ESMAIL::::::::::::::::::::::::::::::

PETITIONER/PLAINTIFF
VERSUS -
ADRIAN SIBO:::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT/DEFENDANT

JUDGEMENT OF JUSTICE A.E. MPAGI BAHIGEINE

This is a reference from the High Court pursuant to Article 137(1), (5) (a) and
(b) of the Constitution.
It was requested by Counsel Mr. G. Lule, S.C., for the defendant Adrian Sibo
in HCCS No.1056 of 1995 in the following terms.
“Whether the Expropriated Properties Act No.9 of 1982, to the extent that it
nullified the sale of the suit property to the defendant and accordingly
deprives him of his proprietary interest therein, contravenes the
Constitution of the Republic of Uganda and is thereby null and avoid.”

The background facts are as follows.

The plaintiff Pyrali Abdul Rasaul Ismail, an Asian, was the original registered
proprietor of freehold land comprised in Plots 4 and 5, Volume 302 Folio 20
and 21 Kyampisi, Bulemezi.
He fled the country during the Asian exodus of 1972. His property
hereinafter referred to as the suit property was expropriated by the
Government under the Assets of the Departed Asians Decree No. 27 of 1973.
During 1975, the defendant, Adrian Sibo, purchased the suit property and
had it registered in his names on 28 th February 1975 vide Instrument
No.1951315. He held this property until 1982 when his title was nullified by
the Expropriated Properties Act No.9 of 1982.
During 1991 the plaintiff purportedly proceeding under the Expropriated
Properties (Repossession and Disposal) Regulations, 1983 applied for and
was issued with a repossession certificate on 18 th December 1993. His name
was reinstated on the Register of Titles as the registered proprietor on 26 th
February 1994.
However to date the defendant has refused to vacate or give up possession
on the ground that he had bought the property bona fide and had spent
colossal sums of money on its improvement and development. He prefers to
retain the property or else be paid adequate compensation prior to
surrendering it.
Up to the time of filing this suit, the Minister was in the process of
negotiating with the defendant as to the terms of compensation under
section 11(4) and (6) of the Expropriated Properties Act No. 9/82.
Written submissions were filed by all three Counsel.
I will briefly summarize their arguments.
Mr. Peter Mulira pointed out that though the state had power to expropriate
property belonging to non-nationals; the taking had to comply with Article
13 of the 1967 Constitution, failure of which meant that the Government did
not acquire any interest in the assets vested in it by section 4 of Decree
27/73. He maintained any purchaser of such property from the Government
could not and did not acquire a valid title.

He asserted that the Expropriated Properties Act No.9/82 nullified the sale
of the property to the defendant, and sought to do four things.

(a) Transfer properties and businesses acquired during the military

regime to the Ministry of Finance;

(b) To effectuate their return to the former owners;

(c) To make provision for their disposal by government, and

(d) provide for other matters.

He argued that it was not the intention of the Act that the Government
acquires proprietary interest in the properties and businesses illegally taken
over from the former owners. He maintained that nullification of the
defendant’s purchase was therefore constitutional in that it was done
pursuant to a law which allowed the defendant access to the High Court, as
provided under the Constitution.

Mr. Barishaki Cheborion, Senior Principal State Attorney, for the Attorney
General submitted that the nullification of the sale to the defendant of the
suit property was done in accordance with the provisions of both
Constitutions 1967 and 1995. He pointed out that the Expropriated
Properties Act No.9/82 is valid law, it provides for compensation to the
defendant or any deprived person in accordance with both Constitutions.
The Government and the DAPCB legally acquired the expropriated
properties. The acquisition was lawful because there was provision in law for
payment of compensation under Article 13 (1) (c) (i) of the 1967 Constitution.
He however contended the plaintiff had not been compensated. Therefore the
taking of his property was unconstitutional for non-compliance with Article
13 (1) (c) (i) of 1967 Constitution. It is this “evil” that the Expropriated
Properties Act No.9/82 was enacted to remedy by returning the properties to
former owners who had not been compensated. He maintained the issue of
how much compensation should be paid to the defendant is not a matter for
the interpretation of the Constitution by this court. He said that Act No.
9/82 did not offend either the 1967 constitution by virtue of Article 273 (1)
of the 1995 Constitution. He stated the Expropriated Properties Act No. 9/82
was promulgated and operated under the 1967 Constitution. Its provisions
were saved by virtue of Article 273 of the 1995 Constitution. In his view the
1995 Constitution did not operate retrospectively so as to change the
Expropriated Properties Act provisions. S.1 (2) of the Act nullified all
transactions and was intended to act retrospectively notwithstanding any
other law. He prayed court to hold that sections 1 (1), 2 (a); 11 (4) and 11 (6)
of the Expropriated Properties Act are Constitutional and expressed
skepticism regarding the effect which a contrary interpretation would have
upon the already completed transactions that have been based on such
provisions.
Mr. Godfrey Lule, SC, for the defendant based his argument on sections 1 (1)
(a) and (2) (a); section 2 (1) (2) (3); section 6 (a); section 5 (1) and section 11
(3) (4) and (6) of the Expropriated Properties Act No. 9/82 which he said was
ultravires both the 1967 and 1995 Constitutions. He stated that to the
extent that section 1 (1) (a) and (2) (a) deprive the defendant a bona fide
purchaser without adequate compensation established according to market
value at the date of payment, such provisions are unconstitutional, null and
void. He pointed out that compensation prescribed under section 11 (4)
leads to unreasonable, unfair and inadequate assessment which is
unconstitutional, null and void. He acknowledged that deprivation of
property and compulsory acquisition of property are not unlawful per se, but
that what is unlawful is deprivation without meeting the criteria set out in
article 13 (1) (c) (i) of the 1967 constitution which was then applicable and
where compensation should be reasonable. He said today deprivation or
compulsory acquisition would be unlawful if the amount of compensation
did not meet the criteria in Article 26 of the 1995 Constitution. He asserted
that the defendant was resisting the plaintiff’s repossession of the suit
property on the ground that the plaintiff should instead be paid
compensation, or that the defendant be paid adequate compensation prior to
his surrendering the suit property. He submitted in depth that reasonable,
fair and adequate compensation within the meaning of both Constitutions is
based on the current market value of the land as assessed at the date of
judgment.
All three Counsel seemed to have agreed to the 12 sub-issues as framed by
Mr. Lule, judging from their treatment of the matter.

In my view the reference involves both nullification of title and

compensation. It is not disputed that it was indeed the duty of the state
which had power to correct past wrongs committed by the military regime by
returning the expropriated properties to their former owners and
compensating the bona fide purchasers of such properties. This is amplified
by the preamble to the Act No.9/82

‘An Act to provide for the transfer of the properties and business acquired or
otherwise expropriated during the Military Regime to the Ministry of
Finance, to provide for the return to former owners or disposal of the same
by Government and to provide for other matters connected therewith or
incidental thereto”.

Mr. Lule, SC, attacked this Act in his written submissions on the ground
that the provisions of Section 11(4) and (6) regarding compensation for the
nullified title or the compulsorily deprived property do not conform to the
provisions of either Article 13(1) (c) (i) of the 1967 Constitution which
stipulates for “the prompt payment of adequate compensation” nor do they
conform to Article 26(2) (a) and (b) (i) of the 1995 Constitution which
provides for the “prompt payment of fair and adequate compensation prior to
the taking of possession.”
The Act No.9/82 was enacted under the 1967 Constitution which
constitution is a thing of the past. The trial court has power by virtue of
Article 273 of the 1995 Constitution to construe the Act with such
modifications, adaptations, qualifications and exceptions as may be
necessary to bring it into conformity with the 1995 Constitution thus
contravening the Constitution. This is necessary because under Article 2 the
Constitution is the supreme law and prevails over any other law or custom
inconsistent with it, and that other law shall to the extent of the
inconsistency be void.
I would therefore make the following declaration.
That since the Act No. 9/82 is an existing law within the meaning of Article
273 of the 1995 Constitution, the provisions of the impugned section 11 (4)
and (6) would be construed qualified and adapted to conform to Article 26 (2)
(b) (i) of the 1995 Constitution by the trial court. The Act therefore would not
be null and void.
I would remit the file back to the trial court to dispose of the case. I make no
order as to costs. My answer to the reference therefore is in the negative.
Dated at Kampala this 23 rd day of June 1998.
A.E. Mpagi Bahigeine
JUSTICE OF APPEAL

JUDGMENT OF TWINOMUJUNI J.A.

This is a reference from the High Court (G. Tinyinondi, J) to this court made
under Art. 137(1) and (5) (a) of the 1995 Constitution of Uganda. The facts
which give rise to this matter are as follows.
The plaintiff/respondent, Pyarali Abdu Rasul Esmail (Hereinafter referred to
as the plaintiff) was up to 1972 the registered owner of land comprised in
freehold Register volume 302 Folio 20 and 21 and known as plot 4 and 5,
Kyampisi, Bulemezi (hereinafter referred to as the suit property).
Being of Asian origin, he was among thousands of members of the Asian
community who were expelled from Uganda by President Idi Amin. On
leaving this country the suit property was vested in the Departed Asians
Property Custodian Board (DAPCB) by a series of Decrees which were later
consolidated into one decree called Assets of Departed Asians Decree No.27
of 1973. That decree gave the DAPCB the power to manage properties of
departed Asians including the power to sell any property if deemed
necessary.
In 1975 the DAPCB sold the suit property to the defendant/applicant
(hereinafter referred to as the defendant) who in the same year became the
registered owner of the property.
In 1982, the Parliament of Uganda enacted the Expropriated Properties Act
(No.9/82) which nullified all dealings of any kind in properties which had
been expropriated under Decree No.27 of 1973. The main objective of Act
9/1982 was to return the expropriated properties to its former owners.
In April 1991 the plaintiff returned to Uganda and applied to repossess the
suit property. On 18 th December 1993 the Minister of Finance issued him
with a Re-possession certificate in accordance with sections 4 and 5 of the
Expropriated Properties Act, 1982. The Chief Registrar of Titles then
amended the register and re-instated the plaintiff as the registered owner of
the suit property. The defendant refused to surrender the property but in the
negotiations that followed with the Minister of Finance, he was promised
compensation in accordance with section 11 (4) of Act 9 of 1982. He
subsequently wrote to the Minister suggesting that given his involvement
with the suit property for many years and the developments he had put
thereon, it would be more just if the government compensated the plaintiff.
The matter seems to have remained at that as far as the Ministry of Finance
was concerned.
In the meantime, the plaintiff filed High Court Civil Suit No. 1056 of 1995
against the defendant to secure physical possession of the suit property.
One of the issues which were agreed at the trial was:-
“Whether the Expropriated Properties Act No. 9 of 1982, to the extent
that it nullifies the sale of the suit property to the defendant and
accordingly deprives him of his proprietary interest therein
contravenes the Constitution of the Republic of Uganda and is therefore
null and void.”
On the 3rd December 1996 G. Tinyinondi, J. made an order referring this
question to this court for interpretation.
In this court, both parties submitted written arguments. The Attorney
General who was not a respondent in the case was served with the reference
under Rule 5(2) of Legal Notice No.4/96 and he also submitted written
arguments. All the three counsel submitted very lengthy arguments. They
took liberty to deal with a lot of matters that I do not consider to be relevant
to the issue before this court. In my attempt to summarize arguments of
counsel, I shall only extract what I consider to be relevant to the issues
before the court.
Mr. Godfrey Lule learned Senior Counsel for the defendant submitted that by
virtue of an act of purchase and subsequent registration of the suit property
in his favour, the defendant became a bona fide purchaser of the suit
property. Mr. Lule then argued that to the extent that section 1(1) and 2(a) of
the Expropriated Properties Act, deprived the defendant, a bona tide
purchaser for value, of the property he purchased, without provision for
payment of prompt, fair and adequate compensation, they violated Articles 8
and 13 of the 1967 constitution and Article 26 of the 1995 constitution and
were therefore null and void.
Mr. Lule conceded that the Expropriated Properties Act fulfilled all the
conditions that must be fulfilled as laid down in Article 13 of 1967
constitution and Article 26 of 1995 Constitution before compulsory
acquisition of property can be done except only one condition; the prompt
payment of adequate compensation. According to him, section 11(4) of Act
9/1982 provided for a formula of compensation which leads to
unreasonable, unfair and inadequate assessment of compensation and
therefore was unconstitutional, null and void. He also submitted that section
11(6) of Act 9/1982 was also unconstitutional, null and void in as much as
it derogated from the payment of prompt, fair and adequate compensation
prior to the taking of possession or acquisition of the property as required
under the 1995 constitution.
In support of his submission that section 11 (4) of Act 9/1982 provided a
formula of compensation that would result into injustice and was therefore
unreasonable, Mr. Lule discussed at length the meaning of “compensation”
and what amounted to “adequate compensation”. He relied on the English
case of West Midland Baptist Trust (incorporated – vs – Birmingham
Corporation (1968) Q.B. 188 and four other Ugandan authorities in which,
he submitted that it was held that for compensation to be reasonable it must
be assessed at market value at the day of judgment or time of trial. He
concluded that the compensation formula provided in section 11 (4) of Act
9/1984 was bound to result in absurd, unfair or unreasonable
compensation at all and this rendered the Act unconstitutional and null and
void.
In support of his submission that section 11 (6) of Act 9/1982 was
unconstitutional, null and void because it derogates from the payment of
prompt, fair and adequate compensation prior to the taking of possession of
acquisition of the property, Mr. Lule argued that, that section must now be
construed as provided for in Article 273 of 1995 constitution which requires
that:
“existing law shall be construed with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring it into
conformity with this (1995) constitution”.
According to Mr. Lule, compensation payable now must be as required by
article 26 of 1995 constitution, namely,
“prompt, fair and adequate compensation prior to the taking of
possession or acquisition of the property.”
His prayer was that this court should declare that the Expropriated
Properties Act was unconstitutional, null and void as it contravened Articles
8 and 13 of 1967 Constitution and Article 26 of the 1995 constitution and
that costs of this reference be awarded to the defendant.
Mr. Mulira who submitted written arguments on behalf of the plaintiff
argued that the Expropriation Decrees which were later consolidated into
Decree 27 of 1973 were unconstitutional and therefore null and void for two
reasons:
(1) That since they were discriminatory and only aimed at people of Asian
origin, they contravened Article 20 and Article 58 of the 1967 constitution.

(2) That they contravened Article 13 of the 1967 constitution.

According to him, since Decree 27/1973 was null and void, it never
conferred any title to expropriated properties on Custodian Board (DAPCB)
or the defendant who purported to purchase from the Board. He argued that
accordingly the defendant never acquired any legal ownership to the suit
property to be “deprived” of by Act 9 of 1982. He concluded that Act 9/82
was valid because all it did was to address an unconstitutional act which
arose because of Act 27/1973 and did not contravene any provision of the
1967 or 1995 constitution.
On whether section 11(4) and 6 of Act 9/82 contravened Articles 8 and 13 of
1967 constitution, I was unable to ascertain Mr. Mulira’s reply from his
written submission except the statement that these provisions did not arise
unless the defendant got a good title by virtue of decree 27/1973. He
submitted that since it was his contention that the 1973 Decrees were null
and void, the constitutionality of section 11(4) and (6) of Act 9/1982 did not
arise.
His prayer was that:-
(a) This court makes a declaration that Decree 27/73 contravened Article
13 of 1967 constitution, and accordingly no interest was acquired by the
defendant.
(b) This court should declare that section 1 of the Expropriated
Properties Act, 1982 is constitutional since the aggrieved party is given a
right of access to the High Court.
In his submissions the learned Attorney General first argued that it was no
longer in dispute that the Government and subsequently the DAPCB legally
acquired the Expropriated Properties of which the suit property was part.
Unfortunately the learned Attorney general did not cite any authority to
support his proposition. He argued that the former owners were entitled to
compensation as was required by Article 13 (1) of the 1967 constitution. He
argued that this condition together with other conditions laid down in Article
13 to be fulfilled before compulsory acquisition could be valid were not
complied with. The learned Attorney General concluded, strangely in my
view, that the taking over of the Departed Asians Property was
unconstitutional. This appears to me to be strange because he cannot in one
breath argue that the expropriation of Asian properties was legal and argue
in the next breath that the whole exercise was actually unconstitutional.
Building on this conclusion, he argued that since the Expropriated
Properties Act 9/1982 was enacted for the purposes of addressing this
constitutional injustice, it would be unfortunate to declare the Act
unconstitutional.
His second argument was that section 1 (1) of Act 9/1982 did deprive the
defendant of property which he had bought in 1975.
He argued that this was in accordance with S.13 (1) of the1967 Constitution
which laid down conditions to be fulfilled before acquisition could take place
as follows:-
(a) the taking of possession or acquisition is necessary in the
interest of Defense, Public safety, Public order, Public Morality, Public
Health, tour and county planning or the development or utilization of
any property in such a manner as to promote the public benefit; and
(b) the necessity therefore is such as to afford reasonable justification for
the causing of any hardship that may result to any person having an interest
or a right over the property; and

(c) provision is made by a law applicable to that taking of possession or

acquisition,

(i) for the payment of prompt and adequate compensation; and

(ii) Security to any person having interest in or right over the property,, a
right of access to the High Court, whether or on appeal from any other
authority, for determination of his interest or right, the legality of the taking
of possession or acquisition of the property, interest or right and that
amount of any compensation to which he is entitled and for the purpose of
obtaining payment and of that compensation.”

Learned Attorney General submitted that at the time the suit property was
returned to the former owner, all conditions laid down in Article 13 of 1967
Constitution had been complied with.
On the question of reasonableness of compensation which is the central
issue in the defendant’s submission, he submitted that section 11(4) of Act
No.9/82 provided a formula that would guarantee reasonable compensation.
He argued that in order to understand the full meaning of that section, it
has to be read together with S.11(2) of the Act which provided that where
property is returned to a former owner, government or the former owner
shall pay the value of any improvements to the property to the deprived
person. The effect of both sections read together was that when the
purchaser who was deprived of property, as in this case, is paid for
improvements and the purchase price then the total sum of these payments
would amount to reasonable compensation within the meaning of Article 13
of the 1967 Constitution.
He argued further that there was provision in Act 9/82 that where there was
a dispute on compensation the matter could be resolved in a court of law.
Finally learned Attorney General, quoting several authorities including:-
(1) Gokaddas Luxi Midas Tanna vs. SR. Rosemary Muyinza & DAPCB
Civil App. No. 12/82.
(2) Nakabiri & Others vs. Masaka Cooperative Union – Civil Suit No.
835/1983.
Submitted that the defendant was lawfully deprived of property in
accordance with both the 1967 and 1995 constitutions and his only remedy
was to get compensation as provided for by section 11 (4) and (60 if Act 9/82
are constitutional and that this case should be remitted to the High Court
for determination of other issues including the quantum of compensation
payable to the defendant by the plaintiff.
In my humble judgment, it is not necessary or relevant in this reference to
decide one way or the other on the issue as to whether the Expropriation
decrees violated the 1967 constitution. If there was ever any doubt as to the
constitutionality of the Decrees, such were put to rest in 1982 when the
issue came up for decision in the Court of Appeal in Departed Asians’
Property Custodian Board vs. Kayondo & Another [1982] H.C.B. 17 where
the court held:-
“The Military Government’s takeover of properties and businesses of non-
Ugandans amounted to nationalization with provisions for payment of
compensation under law (Decree 32 of 1972, S.1 (2) and Decree No. 12 of
1975, S.15); and therefore there was no violation of Article 13 of the
constitution especially as the non-citizens were no longer eligible for
residence in Uganda.”
Similarly in my humble judgment, the Expropriated Properties Act (Act
9/1982) which had the effect of depriving some people of property they had
legally bought from DAPCB did not violate the spirit of Article 13 of the 1967
constitution because the Act provides for compensation. Mr. G. Lule, S.C.,
himself conceded this much in his submission, and so did the Attorney
General.
I have had considerable difficulty in deciding whether the reference before us
can be adequately despised of without implying into it the constitutional
issues of promptness and adequacy of compensation that must be paid
following any act of compulsory deprivation of property. All Counsel seem to
have understood the reference to include the compensation issue, and they
fully covered it in their submissions.
After considering that this is not an academic exercise and that the reference
arose from a factual situation, I came to the conclusion that the issue of
compensation cannot be divorced from this reference. Whereas it is not the
duty of this court to decide on the quantum of compensation and whether it
is reasonable or not, this court cannot shun the issue as to whether S.i1(4)
and (6) of Act 9/82 is contrary or in conflict with Article 13 of the 1967
constitution and Article 26 of the 1995 Constitution. In my view this is a
constitutional issue requiring interpretation of this court and it i implied in
this reference. Since it was fully argued by all the parties to this reference, it
is only fair that it receives an answer.
The contentious provisions of Act 9/1982 provide as follow:-
S.l1 (4):
“The compensation payable under the immediately preceding
subsection
shall be the purchase price less the income derived or which ought to
have
been derived from the said property or business from the date of such
transfer.”
S.11 (6):
“Any compensation unless already paid before the commencement of
this Act, shall be paid over such a period and in such a manner as the
Minister may determine or negotiate with the person or body to be
compensated.”
In order to resolve this matter, I will endeavor to provide answers to the
following three questions:-
(a) Did the above two Sections of Act 9/82 offend against Article 13 of
1967 constitution?
(b) Is it of any consequence today whether any of our laws offend against
the 1967 constitution?
(c) Do the said sections of Act 9/82 offend against the 1995 constitution?
We now know as a fact that the defendant in this case legally purchased the
suit property from DAPCB in 1975. In the same year he became the
registered owner thereof. Act 9/82 nullified that transaction and had the
effect of depriving him of his property. Under the provisions of both the Act
and Article 13 of the constitution then in force, he was entitled to adequate
compensation.” Mr. Lule’s argument is that the formula for compensation
contained in section 11 (4) of the Act could not conceivably achieve
“adequate compensation” and amounted to a violation of the 1967
constitution. He advanced two reasons to support this proposition:-
First, that the provisions ignored the common sense economic principle of
value. That value depends on market forces and rises or fails with market
forces. That any formula which ignored this principle, as the formula in
section 11 (4) does, was bound to produce absurd results and the resulting
compensation was bound to be unreasonable.
Secondly, that the formula ignores another economic reality of fluctuation in
the value of currency, and assumes that the currency maintains its
undiminished value.
The learned Attorney General maintained that the payment of the value of
improvements to the property provided for in section 11(2) and
compensation provided for in section 11(4) was enough to satisfy the
requirements of Article 13 of 1967 constitution. This brings me headlong to
the question: what is reasonable or adequate compensation?
To “compensate” is defined in “WEBSTERS NEW 20TH CENTURY
DICTIONARY OF ENGLISH LANGUAGE” 2ND ED. thus:-
(i) to give equal value -

(ii) to be equivalent in value

iii) to supply an equivalent.

The meaning of compensation was considered in the case of Hern vs.
Sunderland Corp. [19411 1 ALL. ER. 491 where Scatt L.J. stated that: -

“…what is given to the owner compelled to sell is compensation - the right to

be put, so far as money can do it, in the same position as if his land had not
been taken from him. In other words he gains the right to receive a money
payment not less than the loss imposed on him in the public interest, but on
the other hand, not greater.”

In the case of West Midlands Baptist vs. Birmingham Corp. [1968) 1 ALL.
E.R. 205. It was held that compensation should be assessed at the market
value of property at the time of judgment. A number of cases decided in
Uganda have upheld this principle that the market value of the property in
question assessed at the time of judgment is a reasonable measure of fair
and just compensation - Civil Appeal No.33 of 1992 Interfreight
Forwarders (U) Ltd. vs. East African Development Bank (Supreme Court),
Civil Appeal No.3 of 1993 Esso Standard (U) Ltd. vs. Samu Amanu Opio
(Supreme Court), and Matigo Byabaleme and 2 others vs. UTC (1975)
Ltd.
In the latter two cases it was also held that fluctuations of currency, where
applicable, must be taken into account in assessing what reasonable
compensation was due.
I have now to examine the provisions of section 11 (4) of Act 9/82 and
determine whether compensation computed in accordance with the formula
provided therein would put the defendant in the same position as if the suit
property has not been taken from him. The formula is that compensation
payable shall be the purchase price less income derived or which ought to be
derived from the property or business from the date of such transfers.
The example of the instant case will illustrate how absurd a result this
formula can produce. In this case the purchase price was UG. Shs. 75,000/=
(1975 market value). From that figure there must be deducted income
derived or which ought to have been derived from the property since 1975.
Since the economy of Uganda has experienced violent fluctuations over the
years since 1975, it is not clear whether the computation of derived income
from the property over the years can be done without any reference to
market forces prevailing during the period in question. In my view if any
income was derived from the suit property at all and such income is
deducted from the purchase price of Shs. 75,000/=, I doubt whether there
would remain any balance to pay to the defendant. Even if it was found that
no income whatsoever was ever derived from the suit property, it would be
absurd to imagine that compensation of 75,000/= to the defendant would be
adequate. In my humble opinion the formula is capable of producing an
absurd situation where the defendant would not only get no compensation at
all but could be presented with a negative balance payable by the defendant
to government or the plaintiff.
But learned Attorney General argued that S.11 (4) must be read together
with S.11 (2) which provides for compensation for improvements made on
repossessed property so that the two sections provide reasonable
compensation.
With respect, I cannot agree. In my view the two provisions provide for two
separate and different situations. While S.11 (2) clearly covers improvements
on the property in question, S.1l(4) deals with compensation for the property
as originally purchased. In both situations, the compensation had to be
reasonable or adequate to conform to Article 13 of 1967 constitution. In my
judgment the formula for compensation provided in section 11(4) of Act 9/82
could not guarantee reasonable compensation to an owner of property who
is deprived of the property by the operation of the Act. To that extent the
section was in conflict with Article 13 of the 1967 constitution and would
have been null and void if the 1967 constitution was still in operation.
Now, the 1967 constitution is history. We have the 1995 constitution which
saves the Expropriated Properties Act 1982 through Article 273 which
provides as follows:-
“273 (1):
Subject to the provisions of this Article, the operation of existing law
after the coming into force of this constitution shall not be affected by the
coming into force of this constitution but the existing law shall be construed
with such modifications, adaptations, qualifications, and exceptions as may
be necessary to bring it into conformity with this constitution.” (Emphasis is
mine)

This means that Act 9/82 must be “construed with such modifications,
adaptations, qualifications and exceptions as may be necessary to bring it
into conformity with this (1995) Constitution.
Section 11(4) and (6) of Act 9/82 which provides for the disputed
compensation formula and also allows the Minister liberty to determine the
mode and period of payment of compensation must now be construed
accordingly so as to bring them into conformity with the 195 constitution
especially Article 26 thereof which provides: -
“Article 26 (2): No person shall be compulsorily deprived of property or
any interest in or right over property of any description except where
the following conditions are satisfied-
(a) …………………………………………………
(b) the compulsory taking or acquisition of property made under a
law which makes provision for –
(i) prompt payment of fair and adequate compensation, prior to the
taking of possession or acquisition of property; and
(ii) …………….” (emphasis is mine).
In conclusion I would hold that the Expropriated Properties Act 1982 may
have had a few provisions contrary to the provisions of 1967 constitution
especially section 11 (4) and (6) of the Act. However since that constitution is
no more, the Act is good law. Offending sections of that Act like section 11
(4) and (6) must be construed so as to conform to the provisions of Article 26
of the 1995 Constitution.
I would order that the results of this reference be remitted to the High Court
with the order that Civil Suit No. 1056 o f 1995 be determined accordingly. I
would make no order to costs.
Dated at Kampala this 23 rd day of June 1998.
Amos Twinomujuni
JUSTICE OF APPEAL.

JUDGMENT OF MANYINDO - DCJ:

The facts of the case have been fully set out in the judgments of My Lords
just delivered. At the trial the following seven issues were framed for
determination:

“1. Whether plaintiff is the registered proprietor of suit property

2. Whether Defendant purchased the suit property bonafide for value

without notice.

3. Whether the Exp. Act 1982, to the extent it nullifies sale of suit
property to Defendant and accordingly deprives him of his proprietary
interest therein contravenes the Constitution of Republic of Uganda and is
thereby null and void.

4. Whether:

(a) the plaintiff’s application for repossession of suit property, and

(b) the substitution of the plaintiff for the defendant as registered
proprietor of suit property is/or/are null and void for non-compliance with
the law.
5. Whether Defendant wrongfully refused to hand over to plaintiff vacant
possession of suit property.
6. Whether the plaintiff suffered inconvenience and loss.
7. Whether plaintiff is entitled to damages and mesne profits and if so
the quantum.” (sic)
Only issue No.3 was referred to this Court. I do not read the matter of
compensation in that issue. The point raised therein seems to be plain to
me. It is that the nullification of sales and purchases of expropriated
properties under Act No. 9 of 1982 was illegal and unconstitutional. In my
view the spirit of the Act is to return the expropriated properties to their
original owners. It seeks or was intended to redress a wrong that was done
to the Asian Community in Uganda by the Military Regime. Under the
constitutions of 1967 and 1995, the people who purchased under the Act are
entitled to fair, adequate and prompt consideration.
Since it is conceded by Counsel for the respondent that the Act complies
with the Constitutional requirement that deprivation of property must be
accompanied by compensation, then it can not be said to be inconsistent
with the Constitution. Whether the compensation provides for is fair or
reasonable or adequate and prompt is a matter for enforcement of the
constitution in a competent court. It is not a matter interpretation of the
Constitution and therefore, does not belong to this court.
I do not find it necessary to go into the matter of compensation beyond what
I have said already as it is not raised in the reference. Nor do I have to
consider the expulsion Decrees as they are irrelevant to the reference.

In the result I would declare that the Expropriated Properties Act, to the
extent that it nullified the sale and purchase suit property and thereby
dispossessed the defendant/respondent of same, is not inconsistent with
any provision of the Constitution. I would remit the case to the High Court
to determine the renaming issues. I would make no order as to costs in this
Court & the court below regarding the reference.

In accordance with the unanimous view, it is ordered that the following

declaration shall issue:-
The Expropriation Act, 1982, to the extent it nullifies sale of suit property to
defendant and accordingly deprives him of his proprietary interest therein
does not contravene the Constitution and is therefore not null and void.

There will be no order- for the casts of the reference.

DATED at Kampala this: 23 rd day of June 1998.

S. T. MANYINDO
DEPUTY CHIEF JUSTICE
JUDGMENT OF ENGWAU, JA.

In the High Court Civil Suit No. 1056 of 1995, a reference was made to this
Court in accordance with Article 13.7 (1), (5) (a) and (b) of the 1995
Constitution of Uganda. In that case, the Plaintiff sued the Defendant for
recovery of Farm Land. Before his expulsion from Uganda in 1972, the
Plaintiff was the registered owner of Plots 4 and 5 comprised in Freehold
Register Volume 302 Folios 20 and 21 at Kyampisi in Bulemezi (hereinafter
referred to as the “Suit Property”).

Following the exodus of the Asians from Uganda, the Military Government
put in place a series of Decrees governing the assets of the Departed Asians.
Those decrees were later consolidated into the “Assets of Departed Asians
Decree No. 27 of 1973”. Under Section 4 thereof, all the properties left
behind by the Asians were expropriated and vested in the Government.
Section 13 transferred the expropriated properties to the Departed Asians
Property Custodian Board for purposes of day to day management. Section 7
(1) (e) thereof gave the DAPCB (hereinafter referred to as the “Board”) the
power to sell or otherwise deal with the expropriated properties as the former
owner could have done.
In 1975, the Board sold the Suit Property to the Defendant who in the same
year registered it in his names. However, the Expropriated Properties Act No.
9 of 1982 was enacted with the objective of returning the expropriated
properties to the former owners. This Act nullified any purchases, transfers
and grants of or any dealings of whatever kind in such property or business,
and vested such property or business, and vested such property or business
in the Government and to be managed by the Minister of Finance who has
been empowered to transfer to the former owner of any of such property or
business.
In April 1991, the Plaintiff applied for repossession of the Suit Property and
in 1993, the Minister of Finance issued him with a repossession certificate
pursuant to the provisions of Sections 4 and 5 of the EPA. In 1994, the Chief
Registrar of Titles registered the Plaintiff as the proprietor of the Suit
Property and thereby canceling the names of the Defendant from the register
in accordance with the provisions of Section 6 of the EPA. Despite the
change, the Defendant has since refused to give vacant possession of the
Suit Property on the grounds that he is a bona fide purchaser for value and
that he has spent large sums of money for improvements on the property. In
the alternative, that he paid adequate compensation before he can surrender
the property.
During the trial of the suit, one of the issues framed and agreed upon was:-
“Whether the Expropriated Properties Act No. 9 of 1982, to the extent that it
nullifies the sale of the Suit Property to the defendant and accordingly
deprives him of his proprietary interest therein, contravenes the
Constitution of the Republic of Uganda and is thereby null and void.”

The learned trial Judge sent the above reference to this Court for
interpretation on 3/12/96. The issue is that the Expropriated Properties Act,
1982, is being challenged by the defendant as being null and void to the
extent that it nullified the sale of the suit property thereby depriving him of
his proprietary interest therein. Mr. Godfrey Lule, SC for defendant
submitted that the reference as framed is for determination of the validity of
some provisions of the Act where those provisions deprive the defendant, for
that matter anybody else, of an interest in property. The learned Counsel
singled out Section 1 (1) (a), (2) (a); Section 2 (1); Section 5 (1); Section 6 (a)
and Section 11 (3), (4) and 6 of the EPA.

In Section 1 (1) (a) of the EPA, any property which was vested in the
Government and transferred to the Departed Asians Property Custodian
Board under the Assets of the Departed Asians Decree No. 27 of 1973, from
the commencement of this Act, remain vested in the Government and to be
managed by the Ministry of Finance. Under Sections 1 (2) (a) of the Act, any
purchases, transfers and grants of or any dealings of whatever kind in such
property or business were nullified. In Section 2 (1), the Minister has power
to transfer any property or business vested in the Government to the former
owners and under Section 5 (1), the Minster after satisfying himself with the
merits of the application, should issue a certificate of repossession
authorizing the former owner to repossess such property or business.

A certificate so issued under Section 5 of this Act, shall be sufficient

authority for the Chief Registrar of Titles to transfer Title to the former owner
pursuant to Section 6 (a) thereof. Where property or business had been
transferred to any person or body for value and such property or business
was returned to a former owner, the former owner or the Government should
be liable to pay compensation to such person or body. The compensation
payable should be the purchase price less the income derived or ought to
have been derived from the said property or business from the date of such
transfer. Unless compensation was paid before the commencement of this
Act, the Minister would determine or negotiate with the person or body to be
compensated the mode of payment (Section 11 (3), (4) and (6) of the EPA).
Mr. Lule SC contended strongly that under those circumstances, the
defendant was deprived of his proprietary interest in the Suit property as a
bona fide purchaser for value without provision for payment of reasonable
compensation. Learned counsel, however, conceded that deprivation of
property and compulsory acquisition of property are not unlawful in
themselves. What is unlawful, in his view, is deprivation of property without
payment of compensation at all or where compensation is paid such
compensation is unreasonable. My understanding of that argument is that
Act No. 9 of 1982, is valid in so far as it provided for deprivation of property,
save it made no adequate provisions for compensation. So what is
questionable is the reasonableness of the quantum of compensation.
Learned Counsel for defendant argued that the Expropriated Properties Act
No. 9 of 1982, in so far as those provisions are concerned, is
unconstitutional, null and void as it contravened Article 8 and 13 of the
1967 Constitution. In his view, the same provisions of EPA violate the
provisions of Article 26 of the operational 1995 Constitution.
Mr. Peter Mulira, learned Counsel for Plaintiff, disagreed with Mr. Lule. He
argued that the nullification of the defendant’s Title pursuant to the
Expropriated Properties Act, 1982 is not unconstitutional. The EPA, in his
view, complied with the provisions of Articles 8 and 13 of the 1967
Constitution and Article 26 of the 1995 Constitution. Even Counsel for
defendant conceded that deprivation of property and compulsory acquisition
of property are not lawful per se. The objective of Act No. 9 of 1982 is valid
in so far as it provides for deprivation of property, save it made no adequate
provisions for compensation. So what is questionable is the reasonableness
of the quantum of compensation.
Learned Counsel for defendant argued that the Expropriated Properties Act
No. 9 of 1982, in so far as those provisions are concerned, is
unconstitutional, null and void as it contravened Article 8 and 13 of the
1967 Constitution. In his view, the same provisions of the EPA violate the
provisions of Article 26 of the operational 1995 Constitution.
Mr. Peter Mulira, learned Counsel for Plaintiff, disagreed with Mr. Lule. He
argued that the nullification of the defendant’s Title pursuant to the
Expropriated Properties Act, 1982 is not unconstitutional. The EPA, in his
view, complied with the provisions of Articles 26 of the 1995 Constitution.
Even Counsel for defendant conceded that deprivation of property and
compulsory acquisition of property are not unlawful per se. The objective of
Act No. 9 of 1982 was to return the expropriated properties to the former
owners and in that way no hardship would be inflicted to any person who
had interest or right over the property. The Act provided for payment of
compensation and it also gave a right of access to the High Court directly or
by way of appeal.

Learned Counsel for Plaintiff contended instead the expropriation of the

assets from one race in order to favor another race without provision for
compensation was not only discriminatory but was also in contravention of
the provisions of Articles 8 and 13 of the 1967 Constitution and Article 26 of
the 1995 Constitution. In the premises no valid title to the Suit Property
could have been acquired by the defendant. The defendant, in his view, was
therefore not deprived of any proprietary interest in the Suit Property as a
bona fide purchaser for value.

Learned Counsel for the Plaintiff submitted that by returning the

expropriated properties to the former owners, Act 9 of 1982 was serving the
interest of public morality as well as promoting public benefit. Learned
Counsel contended that the question whether or not reasonable
compensation was payable under the provisions of the 1967 Constitution or
the 1995 Constitution is not a constitutional issue within the terms of the
reference to be determined by this Court. Under Sections 4 and 5 of the EPA,
the Minister of Finance allowed the Plaintiff to repossess his property having
been satisfied with the merits of the application.

In Section 14 (1) of the Act, an aggrieved party has a right of appeal to the
High Court against the Minister’s decision to return the land to the former
owner. The defendant chose not to exercise his right of appeal. Therefore, he
cannot be heard to complain that the taking over the Suit Property was
unconstitutional.

In conclusion, Mr. Mulira urged this Court to hold that Section one of the
Expropriated Properties Act, 1982 is constitutional since compensation is
provided for and the aggrieved party is given a right of access to the High
Court; Decree No. 27 of 1973 contravened Article 13 of the 1967
Constitution and the defendant acquired no proprietary interest in the Suit
Property; and that costs of the reference follow the event.
Learned counsel for the Attorney General submitted that since Counsel for
the defendant has conceded that deprivation of property and compulsory
acquisition of property are not unlawful in themselves, the Attorney General
is of a similar opinion, that the Expropriated Property Act, 1982 is valid law
and does provide for compensation to a deprived person in accordance with
the provisions of both the 1967 and 1995 Constitutions. In his view, matters
relating to how much compensation is payable in each particular case can
be negotiated inter-parties or be adjudicated upon by the High Court.
The Attorney General submitted that the defendant, in the instant case, has
not been offered any specific sum as compensation nor has he demanded
any from the government or the Plaintiff for the property and alleged
improvements. The defendant has instead refused to vacate the Suit
Property on the ground that it should be the Plaintiff to be compensated. It
was the contention of the Attorney General that the issue of how much
compensation should be paid to the defendant does not require the
interpretation of this Court. The nullification of the sale to the defendant of
the Suit Property and consequently interest therein was done pursuant to
the provisions of the 1967 Constitution under which the EPA was enacted
and the same provisions of the Act do not contravene the operational 1995
Constitution.
By the time the Board sold the Suit Property to the defendant in 1975, the
former owner had not been compensated. The Attorney General conceded
that the issuing of repossession certificate by government was an indication
that the defendant was deprived of the property by the Government. It was
the argument of the Attorney General that the Acquisition was pursuant to
the provisions of Article 13 of the 1967 Constitution and in line with Section
1 (1) of the EPA. Having acquired the Suit Property, the government then
transferred to the Plaintiff. It was open to the defendant to appeal against
the Minster’s decision to the High Court by virtue of Section 14 (1) of the
EPA.

According to the Attorney General Article 8 (2) Cc) of the 1967 Constitution
protects an individual right to property, but under Article 13 thereof,
deprivation in certain instances is allowed as long as compensation is paid.
Section 11 (3) of the EPA provides for payment of compensation to whoever
is deprived of his property. It was his submission that it was in the interest
of justice and for public morality that the Suit Property had to be returned to
the Plaintiff in conformity with the law.

It was the argument of the defendant that he is the bona fide purchaser for
value of the suit property, but the Attorney General submitted that under
Section 1 (2) (a) of the EPA, any purchases, transfers and grants of or any
dealings of whatever kind in, such property or business were nullified. In his
view, the question of who is and who is not a bona fide purchaser does not
arise.

It is common knowledge that the defendant bought the Suit Property from
the DAPCB in 1975 and registered it in his names the same year. This
transaction was conducted under the Assets of Departed Asians Decree No.
27 of 1973 which was in force. By that time the former owner of the property
had not been compensated. In my view failure to provide for payment of
compensation to the plaintiff was a violation of the provisions of Article 13 of
the 1967 Constitution. The acquisition of the expropriated properties was
based on racial discrimination without provision for payment of
compensation. In that context I would hold that no valid title to the suit
property had been acquired by the defendant and that he was not deprived
of any proprietary interest therein as a bona fide purchaser for value.
The spirit, with which the EPA was enacted, was to remove that “evil” and
return the properties to the former owners who had not been compensated.
Mr. Lule conceded that deprivation of property and compulsory acquisition
of property are not unlawful in themselves. What is unlawful to the learned
Counsel is deprivation of property without payment of compensation at all or
where compensation is paid such compensation is unreasonable. In his
view, the deprivation in 1982 was in contravention of Article 8 of the 1967
constitution and the acquisition contravened Article 13 of the same
Constitution. In both cases, deprivation or acquisition are in contravention
of Article 26 of the 1995 Constitution.
The question of reasonableness of compensation, in my view, does not arise
in that learned Counsel for defendant is departing from issue referred to this
Court. The issue is “whether the EPA to the extent that it nullifies the sale of
the Suit Property to the defendant and accordingly deprived him his
proprietary interest therein contravened the Constitution of Uganda and is
null and void.” As I understand the issue, the reasonableness or
unreasonableness of compensation if irrelevant.
In the instant case, the defendant had submitted his interest in the suit
property to the verification Committee and the matter was pending
negotiation with the Minister. No specific sum of compensation had been
reached between the defendant and the Minister or between the defendant
and the plaintiff. In any case, if no agreement was reached inter-parties, the
matter would be resolved by adjudication in the High Court. An aggrieved
party has access to the High Court by way of appeal. The question of
reasonableness of compensation is, with respect, prematurely raised in this
Court. In other words, the question of compensation is not a matter of
interpretation by this Court.
I would conclude that the EPA in so far as the provisions complained of are
concerned, does not violate Articles 8 and 13 of the 1967 Constitution under
which it was enacted nor does it offend Article 26 of the 1995 Constitution.

In the result, I would remit the results of this reference to the High Court
with an Order that the issues in Civil Suit No. 1056 of 1995 be determined
on merit and I would make no Order as to costs for this reference.

Dated at Kampala this 23 rd day of June 1998.

S.G. ENGWAU
JUSTICE OF APPEAL.

JUDGMENT OF BERKO, J.A.

This reference for interpretation was made by Tinyinondi, J. on the 3rd

December 1996 to this court under Article 137(1) and (5) of the 1995
Constitution of Uganda. The facts have fully set out in the Judgments of my
Lords which I had the privilege of reading in draft.

At the trial one of the issues framed for determination was:-

“Whether the Expropriated Properties Act, 1982 (Act 9) to the extent that it
nullifies the sale of the Suit property to the defendant and accordingly
deprives him of his proprietary interest therein contravenes the Constitution
of the Republic of Uganda and is thereby null and void”.

It was that issue which was referred to this court.

The matter raised therein seems to me to be that the nullification of sales
and purchases or dealings of expropriated properties under Act 9 of 1982
return the expropriated properties to their original owners. The objective of
the Act was to correct a historical wrong that was done to the Asian
Community in Uganda by the infamous Military Regime and in a way to
prevent the endless mischief or injury. Under the Constitutions of 1967 and
(1995) the people who purchased expropriated properties but have to lose
them under the Act are entitled to fair, adequate and prompt compensation.
Mr. Lule who appeared for the respondent conceded that the Expropriated
Properties Act, (Act 9 of 1982) complied with all the constitutional
requirements that deprivation of property must be accompanied by
compensation. Hi complaint however, is that though the Act provides for
compensation, it did not provide for “reasonable compensation” as
required under the 1967 Constitution or “prompt, fair and adequate
compensation” under the 1995 Constitution and to that extent the Act is
unconstitutional. I do not subscribe to such a view. Since the Act complies
with the Constitutional requirement that deprivation of property under the
Act must be accompanied by Compensation, then it can not be said to be
inconsistent with the Constitution. The question whether the compensation
provided is “prompt, fair and adequate” is a matter for enforcement of a
right under the Constitution that can be dealt with by any competent court.
That is not a matter of interpretation of the Constitution and therefore does
not belong to this court.
In the result I would also declare that the Expropriated Properties Act, 1982,
Act 9, to the extent that it nullified the sale and purchase of the suit
property and thereby dispossessed the defendant/Respondent of the same,
is not inconsistent with any provisions of the Constitution. I would remit the
case to the High Court to dispose the case in accordance with this decision. I
agree with the Orders as to cost proposed by D.C.J.
Dated at Kampala 23rd this day June 1998.
J.P. Berko
JUSTICE OF APPEAL.

Osotraco Limited v Attorney General - High Court Civil Suit No. 00-CV-
CS-1380 of 1986 (High Court Suit No. 00-CV-CS-1380 of 1986) [2002]
UGHC 5 (20 March 2002);

JUDGMENT

1. The Plaintiff, M/S Osotraco Limited, seeks in this action, an order for
eviction of the defendant from the suit premises, a permanent injunction,
special and general damages, mesne profits, interest and costs of this suit.
The plaintiff claims to be the registered proprietor of the Plot No. 69 Mbuya
Hill, Kampala, hereinafter referred to as the suit property. It claims to have
purchased the same from Uganda Times Newspapers Limited sometime in
June 1985 and a transfer effected accordingly. It is alleged that the
employees of the Ministry of the Information and Broadcasting were in
occupation of the property, and refused to vacate when requested to do so,
claiming that the suit property belonged to the Ministry of Information and
Broadcasting. As a result this suit was commenced.
2. The defendant, in its amended written statement of defence, filed on 12th
July 1988, asserts that the sale of the suit property and subsequent transfer
were done without the proper authority and necessary consents of the
Ministry of Information and Broadcasting and Ministry of Finance, the
shareholders of the Uganda Times Ltd. The defendant contended that owing to
the illegal nature of the contract of sale, the defendants are the legal
proprietors of the suit property, and its employees are in lawful occupation of
the same.
3. When this case was called for hearing Counsel for the defendant raised a
preliminary objection that the plaint did not disclose a cause of action. I
dismissed the preliminary objection and stated that I will provide reasons for
doing so in this judgment. I now set forth my reasons.
4. Ms Patricia Mutesi, learned counsel for the defendants submitted that the
plaint did not disclose a cause of action for several reasons. Firstly, that
paragraph 2 of the plaint did not state that the Attorney General was being
sued in his representative capacity for the acts of his servants or agent.
Secondly, that paragraph 4 of the plaint did not allege that the employees in
trespassing on the suit property did this in the course of their employment or
duty. She further submitted that the plaint had failed to comply with Order 4
Rule 1 of the Civil Procedures Rules. She referred to the cases of Auto Garage
v Motokov [1971] E.A. 51 and Kangave v Attorney General [1972] U.L.R. 150
as authority for her submission.
5. Ms Mutesi further claimed that the plaintiff had no locus, as he was not
properly registered as the proprietor of the suit property. She claimed that the
certificate of title attached to the plaint did not have the Registrar’s signature.
Lastly, she contended that as the plaint claimed injunctive relief that was
barred by the Government Proceedings Act, the plaint did not a disclose a
cause of action.
6. Mr. Sentemero, learned counsel for the plaintiff opposed the preliminary
objection. He submitted that the plaint disclosed a cause of action and relied
on Auto Garage v Motokov. He submitted that the Registrar of Titles had
signed the certificate.
7. I have examined the plaint in this matter. I am satisfied that it discloses a
cause of action. It is not strictly essential that it be pleaded in the plaint that
servants of the defendant were acting in the course of their employment. It is
sufficient to state that it is the acts of servants of the defendant, which are
complained against. The defendant is in a better position to know if they were
acting in the course of their employment or not. It is up to him to raise it in his
pleadings.
8. There is no requirement at law that the plaint must allege that the Attorney
General is being sued in a representative capacity. The Attorney General is
sued by virtue of Section 11 of the Government Proceedings Act in respect of
all claims against Government. As regards the claim for injunctive relief, this
was not the only relief claimed. It is a matter that can appropriately be dealt
with at the relief stage. For those reasons I dismissed the preliminary
objection.
9. At the commencement of the trial counsel agreed on five issues. (1) Whether
the Plaintiff is the registered proprietor and entitled to possession of the suit
property; (2) Whether the plaintiff is entitled to mesne profits from the
defendant; (3) Whether the Plaintiff is entitled to special and general damages,
and if so how much? (4) Whether the Plaintiff is entitled to an order for eviction
and or vacant possession from the Attorney General; and (5) Which party is
entitled to costs of the suit?
10. The plaintiff called one witness to prove its case and the defendant called
none. Plaintiff’s Witness Number was James Ocaya, a director of the Plaintiff
since 1981 to-date. He testified that sometime in 1985 the plaintiff company
purchased from the Uganda Times Newspapers Limited the suit property. The
plaintiff company paid the purchase price and the suit property was
transferred into the names of the Plaintiff Company on 23 rd August 1985. He
produced as an exhibit a certified copy of the certificate of title to the suit
property.
11. Plaintiff’s witness No. 1 further testified that after purchase of this
property, the plaintiff failed to obtain vacant possession of the said property.
The Ministry of Information and Broadcasting intervened claiming ownership
of the property, and subsequently obtained a court injunction restraining the
plaintiff from dealing with the suit property. Efforts in 1999 to evict the
occupants were seriously resisted by the office of the Attorney General. In the
meantime the company had mortgaged the suit property to a bank to secure a
loan.
12. In further testimony the witness stated that the suit property was made of
four blocks of residential flats, each block made up of eight housing units, and
in addition there were servants quarters for each of the units. In 1985 each
housing unit could fetch rent per month of shs.150,000/=. This was due to the
poor security situation in the area at the time. By 1990 security had improved
and the company was receiving offers of shs.300,000/= per month per unit.
As of now the witness was of the opinion that each would fetch up to
Shs.350,000/= per month.
13. In cross-examination the witness denied that the company received any
letter from a Government official prohibiting the sale from taking place.
14. In his address to this court, learned Counsel for the Plaintiff, Mr.
Madrama, submitted that with regard to issue number one, the plaintiff had
proved that it’s the registered proprietor of the suit property and its title can
not be impeached save for fraud. He submitted, relying on Kampala Bottlers
Ltd vs. Damanico (U) Limited, Civil Appeal No. 22 of 1992, (unreported), that
fraud must be specifically pleaded and proved, and it must be attributable to
the transferee. Fraud was never pleaded or proved in the instant case.
15. With regard to the issue for mesne profits, Mr. Madrama submitted that
Section 2 of the Civil Procedure Act defines mesne profits. The plaintiff must
show that the defendant is in wrongful possession. He submitted that this
had been proved as defendant denied the plaintiffs title, claiming to be the
rightful owner of the suit property. The original owner was Uganda Times
Newspapers Limited, and not the defendant. Mr. Madrama further submitted
that the plaintiff was entitled to general damages as the Attorney General
opposed both the mortgage of the property in question and plaintiff’s
possession of the same. He submitted that the principle of Restitutio Intergrum
applies and requires that the plaintiff be put in a position he would have been
if the defendant had not interfered with his rights. He abandoned the claim for
special damages as no evidence had been led to support the same.
16. With regard to quantum of mesne profits, Mr. Madrama claimed Shs.
62,400,000/= for the period between 1986 and 1990, based upon
shs.150,000/= per month per unit, with interest at 25% per annum. Between
January 1991 to December 2000, he claimed mesne profits of
Shs.288,000,000/= at the rate of Shs.300,000/= per month per unit, with
interest at 12% per annum. And from January 2001 to January 2002 he
claimed mesne profits of Shs.33,550,000/= at the rate of Shs.350,000/= per
month per unit, with interest at 6% per annum. He further prayed for the sum
of Shs.100,000,000/= for general damages for none use of the property
including as a security for loans. He prayed for costs, an order for eviction and
vacation of the temporary injunction. In the alternative he prayed for a
declaratory order that the plaintiff is entitled to possession of the suit
property.
17. I now turn to the first issue. And that is whether the Plaintiff is the
registered proprietor of the suit property and entitled to possession of the
same. This issue can only be answered in the affirmative on both the
pleadings and the evidence before court this court. Plaintiffs witness number
one produced a certified copy of the certificate of title to the suit property. It
was admitted in evidence as exhibit P2. On the 23rd August 1985, the suit
property was transferred to the Plaintiff under Instrument No. 223644 and the
previous owner, Uganda Times Newspapers Limited, was cancelled. The suit
property is comprised in Leasehold Register, Volume 1103 Folio 1.
18. The history of the suit property evident from the certificate of title is that it
was leased by one Saraswati Gangaram, the owner of the Freehold title, to
Uganda Consolidated Properties Limited with effect from 1 st May 1954. A
transfer was effected on the register from Uganda Consolidated Properties Ltd
to Uganda Times Newspapers Limited on 7 th June 1985. The lease of the
property was due to expire or actually expired on 30 th April 2001. On the 27 th
November 1986 the Ministry of Information and Broadcasting entered a caveat
on the register.
19. The defendant challenges the Plaintiffs ownership of the suit property in
paragraphs 3 and 4 of the written statement of defence in these terms. “3.The
defendant avers that the sale and subsequent transfer, of the property in
issue was done without the proper and necessary consents of the Ministry of
Information and Broadcasting and of the Ministry of Finance and that of the
shareholders in the company being obtained. The defendant further avers that
the then Minister of Information and Broadcasting expressly prohibited any
sale transaction in respect of the said property but despite the said prohibition
the plaintiff in connivance with the then Managing Director took advantage of
the subsequent chaos of the 1985, July, 27 th coup and fraudulently caused the
transfer of the property from Uganda Times Ltd to M/S Osotraco Ltd.
Accordingly the claim contained in paragraph 3 is not admitted”
20. “4. The defendant avers that owing to the illegal nature of the transaction
under which M/S Osotraco obtained the referred to certificate of title in the
plaint, he is still, unless otherwise determined by this Honourable Court, the
legal proprietor of Plot 69 Mbuya Hill and accordingly his employees do legally
occupy the said premises. Therefore the claims and allegations contained in
paragraphs 4,5,6,7, and 8 of the plaint are not admitted.”
21. The defendant does not show on its pleadings under what law that
consents of the Ministry of Information and Broadcasting and the Ministry of
Finance and of the shareholders are necessary before the suit property can be
disposed of or transferred by Uganda Times Newspapers Limited to Osotraco
Limited or any other natural or juridical person for that matter. No law is
pointed to by the defendant that makes the transfer of the suit property as it
occurred to be illegal. I am unable to lay my hands on any such law too.
22. While in paragraph 3 of the amended written statement of defence, the
defendant seems to acknowledge that Uganda Times Newspapers Limited
was the registered proprietor of the suit property, in paragraph 4 of the same
document, the defendant asserts that it is legal proprietor of the suit property
unless this court holds otherwise. The defendant does not lay any basis at
law or by agreement from whence it derives its claim of title to the suit
property.
23. The plaintiff has produced a certified copy of the certificate of title to the
property. The plaintiff is the registered proprietor with effect from the 23 rd
August 1985. This title has not been impeached by fraud. No particulars of
fraud have been alleged in the written statement of defence. According to
section 56 of the Registration of Titles Act production of a certificate of title is
conclusive evidence of ownership of the property in question. I find that the
plaintiff is the registered owner of the suit property, and as between the
plaintiff and defendant, the plaintiff is entitled to possession of the suit
property.
24. Issue number two is whether the plaintiff is entitled to mesne profits from
the defendant. Section 2 of the Civil Procedure Act defines
 PURAN CHAND MANY V THE COLLECTOR UNDER THE INDIAN LAND
ACQUISITION ACT, 1894

 Details

Category: EA cases

Case Summary

This is an appeal from a decision of the Supreme Court of Kenya on a

reference to the court under s. 18 of the Indian Land Acquisition Act, 1894.

The appellant bought at public auction in 1946 a plot of privately owned land
16.22 acres in extent at Clements Road, Nairobi. I shall refer to this land as
“Plot 2784”. The price was Shs. 149,224/-, or £460 per acre. The title was a
Crown lease for ninety-nine years from November 1, 1902, and was subject to
a condition limiting user to agricultural purposes. The ground rent was Shs.
128/34 per annum. Since the land is only about three quarters of a mile from
the town centre, it was at all material times improbable that it would be used
for agriculture, and in 1945 Government had approved in principle a
subdivision for building purposes. This was confirmed in 1950, and it has
been common ground in these proceedings that at the time of acquisition the
appellant was entitled to have Plot 2784 subdivided into building plots of
three-quarters of an acre each with a condition for erection of one house on
each plot. In that event new leases for ninety-nine years would have been
issued with revised ground rents of 1½ per cent, of the capital value of the
building sites, whether realized or estimated. It seems to have been assumed
by all concerned that building on this basis would be possible, and in
consequence the value of the plot appeared on the City Valuation Roll in 1952
at a high figure. The date on which value must be assessed for the purposes
of the compulsory acquisition is December 11, 1951. The appellant claimed
Shs. 1,380,000/- and the collector awarded on November 28, 1952, Shs.
244,835/-. On a reference at the instance of the appellant the Supreme Court
increased the amount of compensation by nearly £2,000 and fixed it at Shs.
283,800/-. The collector was ordered to pay one-half of the appellant’s costs
of the reference. The appellant appeals on the ground that the compensation
for Plot 2784 is inadequate.

Held–

(i) where a reference on a compulsory acquisition has been made to the

court, it is permissible to have regard to the whole decision, and if the Court
of Appeal is of opinion that the court of first instance proceeded on an
incorrect principle of law, the decision is of no value even though neither
party appeals from it.

(ii) the market value of land as the basis on which compensation must be
assessed is “the price which a willing vendor might be expected to obtain from
a willing purchaser”, and a “willing purchaser” is one who, although he may
be a speculator, is not a wild or unreasonable speculator.

(iii) in considering whether to apply the criterion of a transaction affecting

comparable land the court must consider whether the purchaser had paid so
high a price that the court would conclude that he had not displayed the
ordinary caution which a purchaser of land should display.

Per curiam – In the case of Plot 2785 the Supreme Court failed to realise that
the purchaser had made a rash and unbusinesslike speculation in that he
paid far more than it was worth as agricultural land; he apparently took no
 steps whatever to ascertain whether it could be used as building land, and in
consequence the award in respect of that plot should be disregarded in
assessing the value of the adjoining plot.

Appeal dismissed.

Advocates Coalition For Development & Environment & 4 Ors V

Attorney General & Anor ((Constitutional Petition No. 14 Of 2011))
[2011] UGCC 11 (15 November 2011);

1. ADVOCATES COALITION FOR

DEVELOPMENT AND ENVIRONMENT
2. HON. ATIM A. O. BEATRICE PETITIONERS
3. ACTION AID UGANDA
4. FORUM FOR WOMEN IN DEMOCRACY
5. CENTRE FOR PUBLIC INTEREST LAW

AND
1.
ATTORNEY GENERAL RESPONDENTS
2. THE PARLIAMENTARY COMMISSION

CORAM : HON. JUSTICE A.E.N.MPAGI-BAHIGEINE, DCJ;

HON. JUSTICE S.B.K.KAVUMA, JA;
HON. JUSTICE A.S.NSHIMYE, JA
HON. JUSTICE M.S.ARACH AMOKO, JA;
HON. JUSTICE REMMY KASULE, JA;

JUDGEMENT OF THE COURT

INTRODUCTION:

This petition is brought under Article 137(3)(b) of the Constitution, the

Constitutional Court (Petitions and References) Rules, S.I No. 91 of 2005
and all the other enabling laws.

It was brought by Advocates Coalition for Development and Environment,

Hon. Atim A.O Beatrice, Action Aid Uganda, Forum For Women In
Democracy and the Centre For Public Interest Law, (hereinafter individually
referred to as the 1 st, 2nd, 3rd, 4th and 5th Petitioners respectively and together
as the petitioners).

In the Petition, the petitioners variously describe themselves as hereunder:-

1.
The 1st, 4th and 5th Petitioners are companies limited by guarantee engaged
in and carrying out independent public policy research and advocacy,
capacity building and lobbying to ensure respect for human rights, good
governance, transparency and accountability in the conduct of the public
affairs of the State of Uganda.
2. The 2nd Petitioner was a member of the 8 th Parliament representing
the Women of Kitgum District.
3.
The 3rd Petitioner is a Non-Governmental Organisation duly registered under
the laws of Uganda and with objectives and carrying on activities similar to
those of the 1 st, 4th and 5th Petitioners.
4.
The 1st Respondent is sued in its representative and constitutional capacity
representing the Government of Uganda.
5. The second Respondent is a body Corporate established under section
2(3) of the Administration of Parliament Act, Cap. 257 of the laws of Uganda
with power to sue and be sued in its name.

The Petitioners make the following averments:-

(i)
That the petitioners have a constitutional and civic duty to defend and
uphold the Constitution of Uganda and prevent wastage of public resources
in accordance with Objective No.XXIX of the National Objectives and
Directive Principles of State Policy and Article 17 of the Constitution.
(ii) That the Executive and Legislative arms of government, represented by
the respondents in this petition, are bestowed with public trust to, inter alia,
manage public resources and run the affairs of the State of Uganda in
accordance with the Constitution and the wishes and aspirations of the
people of Uganda.
(iii) That in January 2010, the respondents, without the authority of any
law or motion of Parliament, caused to be paid to each member of
Parliament a total sum of Uganda Shillings 20, 000, 000/= to monitor
government programmes.
(iv)
That the said payment was done in total disregard of Articles 1(1), (2), 8A,
85(1) and 2, 154 (1) (a) and ( b), 154 (2), 159, 164 , 90(1), (2) - (4) and 94
and Objective Principles of State Policy Nos. XXVI and XX1X of the
Constitution of Uganda and was neither appropriated nor made under any
enabling law and was an interference with the independence and autonomy
of Parliament and was made contrary to its Rules of Procedure.
(v)
That the legislative duty of monitoring government programs is not a
function of an individual member of Parliament but rather, a duty executed
through Committees of Parliament as provided for under Articles 90 (1) –
(4) and 94 of the Constitution and Part XXVI of the Rules of Procedure of
the Parliament of Uganda.
(vi)
That payment by the 1 st and 2nd Respondents of the sum of Ushs. 20
(Twenty) million to each member of Parliament and a total sum of Ushs 6.2
bn (Six billion Two Hundred Million), without authorization is a breach of
trust and a violation of the sovereignty of the people of Uganda and is
inconsistent with and/or in contravention of Objective XXVI of the National
Objectives and Directive Principles of State Policy and Article 1, 2, 8A
and 164 of the Constitution.
(vii)
That the act of receiving, using and/or refusing to return the said unlawful
and unconstitutional payment by members of Parliament is an abuse of the
public trust bestowed upon them and a negation of their duties to prevent
wastage of public resources and is, therefore, inconsistent with and in
contravention of Articles 1, 17(1) (i) and 164(2) and (3) of the Constitution.

The petitioners seek the following declarations:

a)
A declaration that the acts of the 1 st and 2nd Respondents of approving and
paying to each individual member of Parliament a sum of 20,000,000/= is
inconsistent with and in contravention of Articles 1(1), (2) and (3), 85(1)
and (2), 154(1) (a) and (b) and 154(2) of the Constitution of Uganda.
b) A declaration that the act of paying members of Parliament by the
Respondents to monitor government programmes is in contravention of
Articles 1, 79, 90(1), (2) and (3) of the Constitution and the Rules of
Procedure made pursuant to the provisions of Article 90(3) of the
Constitution.
The petitioners seek orders that:
a)
The 1st and 2nd Respondent recover the Shs. 6.2 billion paid out to the
members of Parliament in January 2011 and refund the same to the
Consolidated Fund within one month from the date of judgment.
b)
The Respondents be restrained from making payments to members of
Parliament without following the provisions of the Constitution and the
relevant laws.

The Petition is accompanied by the affidavits in support sworn by Mr.

Godber W. Tumushabe, that by the 2 nd Petitioner together with her affidavit
in rebuttal and her further supplementary affidavit in rebuttal of the
respondents’ affidavits. Further affidavits in support of the petition are from
Hon. Nabila Nagayi Sempala, and Hon. Erias Lukwago, both members of the
8th Parliament.

These affidavits basically narrate the background of the petition and amplify
the averments of the petitioners.

The answers to the petition filed by the respondents are accompanied by

affidavits sworn by the Clerk to Parliament, the Secretary to the Treasury
and Ms. Eva Kabundu, a State Attorney at the 1 st respondent’s Chambers.

The respondents contend that the acts of the respondents complained of by

the petitioners are neither inconsistent with nor in contravention of any of
the Articles of the Constitution cited by the Petitioners or any other law.
They contend, further, that the Petitioners are not entitled to the
declarations and the orders they seek from court.
The issues:
There are four agreed issues, namely:
i)
Whether the act of authorization, withdrawal and payment to each
Member of Parliament a sum of Shs.20m was in contravention of
Articles 1(1)(2) and (3), 79, 85 (1) and (2), 154(1), (2), (3) and 164 (2) of
the Constitution.
ii) Whether the act of paying individual members of Parliament to
monitor Government programmes is inconsistent with Articles 79,
85(1), and (2) of the Constitution and the Rules of procedure of
Parliament made pursuant to Article 90(3) in as far as the duties of
members of Parliament and the Committees of the House are
concerned.
iii) Whether the act of receiving and using the said payment by
Members of Parliament is an abuse of public trust bestowed upon them
and a negation of their duties to prevent waste of public resources and
therefore inconsistent with and in contravention of Articles 1, 17(1)(i),
164 (2) and (3) of the Constitution.
iv) Whether the parties are entitled to the reliefs sought.

Representation:
At the hearing of the petition, learned counsel Muhumuza Kaahwa, Francis
Tumusiime, Francis Gimara and Nicholas Opio represented the petitioners
while Mr. Henry Oluka, Principal State Attorney assisted by Mr. Daniel
Gantungo, State Attorney represented the 1 st respondent and Ms. Stina
Cherotich appeared for the 2 nd Respondent.

The case for the Petitioners.

Issue 1:
Arguing issue one, counsel for the Petitioners submitted that emoluments
and such other facilities of Members of Parliament are determined by
Parliament under Article 85, not the Minister of Finance and Speaker of
Parliament. According to them, the budget of Parliament for the financial
year 2010/2011 had no funds from which the members of Parliament could
be facilitated to monitor government programmes. Counsel further
submitted that Articles 154(3) and (4) prohibit withdrawal of money from
the Consolidated Fund which is not authorized by law. Counsel cited Section
16 of the Public Finance and Accountability Act, and Regulations 38 and 39
made under that Act. Counsel prayed court to find in the affirmative on this
issue.

Issue 2:
Arguing issue two, counsel for the petitioners submitted that the functions
of Parliament are provided for by Article 79(1) and that Article 90 of the
Constitution provides for and empowers Committees of Parliament, under
Rules 133 and 161(d) to monitor government programmes. He further
submitted that members of Parliament are not experts on National
Agricultural Advisory Services, (NAADS) and that Article 90(3) pre-supposes
the non-expert nature of Parliament. He contended that MPs could not,
therefore, monitor government programmes. He also submitted that MPs
already have a hefty-package of allowances for carrying out their activities.
Concluding this issue, counsel submitted that at the time of the payment,
the members of Parliament were busy campaigning and had only three
months left to the end of their term of office and as such had no time to
monitor NAADS and other government programmes. He asked court to find
in the affirmative on this issue.

Issues 3 and 4:
On issues 3 and 4, counsel for the Petitioners submitted that the payment
by the respondents and receipt by each member of Parliament of Shs. 20m
was a breach of public trust contrary to Articles 1, 164 and 8A and
Objective 26 of the National Objectives and Directive Principles of State
Policy of the Constitution. He submitted that the Shs.20m was paid without
guidelines and Terms of Reference. He further submitted that Public Trust is
a fudiciary duty between the governor and the governed in accordance with
Article 1 (3) of the Constitution. He contended that when leaders misuse
public funds, they must refund the same as provided for under Article
164(2) of the Constitution. He pointed out that Article 164(3) provides that
Parliament shall monitor all public expenditure.

Counsel submitted that the Shs 20m paid to each member of Parliament was
taxed yet allowances to monitor government programmes should not be
taxed. He further submitted that this payment was wrongly frontloaded from
the 4th to the 2 nd quarter of the Financial Year 2010/2011. Counsel prayed
Court to find in the affirmative on these issues and grant the petitioners the
reliefs they sought.

The case for the respondents:

Issue 1
Submitting for the 1 st Respondent, Mr. Henry Oluka stated that it was the
case of the respondents that the acts of authorization, withdrawal and
payment of the Shs 20m to each member of Parliament were not in
contravention of Articles 1, (2), (3), 79, 85(1), 154(1)(2) and (3) and 164(2)
of the Constitution. Counsel submitted that Article 79 (1) gives Parliament
power to make laws for the good governance of Uganda. Some of the laws
that Parliament made are the Public Finance Act, No. 6 of 2003 and the
Administration of Parliament Act, Cap 257 of the Laws of Uganda. The
administration of Parliament, counsel pointed out, is undertaken by the
Parliamentary Commission established under Article 87A of the
Constitution. He submitted, further, that under S4(1) (b) of the Public
Finance and Accountability Act, the Minister of Finance Considers requests
for money from the Consolidated Fund as she did for the Shs 20m the
subject of this petition.

Counsel further submitted that the Speaker, as the head of Parliament and
Chairman of the Parliamentary Commission is empowered to make financial
estimates on expenditure under Section 6(f) of Cap 257. To counsel, the
Speaker was not wrong to consult with the Minister of Finance who, under
Section 3 (b) of the Public Finance and Accountability Act, 2003, supervises
and monitors the public finances of Uganda. He, further still, submitted that
it was not illegal for the Speaker to request for additional funding to
facilitate members of Parliament to monitor government programmes and
that this did not amount to contravention of Article 1(1)(2) and (3) of the
Constitution. It was not an infringement of Article 79 either. The money
paid out to the members of Parliament was part of emoluments or allowance
covered by Article 85 of the Constitution. Counsel contended, further, that
the payment of Shs 20m to each member of the 8 th Parliament was
consistent with all the articles of the Constitution set out in issue one and
was neither a contravention of the Administration of Parliament, the Public
Finance and Accountability and the Appropriation2010/2011 Acts as well as
the Regulations made under the Public Accountability Act.
He prayed Court to find in favour of the respondents on issue one.

Issue 2
With regard to issue two, counsel for the 1 st Respondent submitted that the
payment of Shs. 20m to each member of the 8 th Parliament to monitor
government programmes was neither inconsistent with nor in contravention
of Articles 79 and 85 of the Constitution or any of the Rules of Procedure of
Parliament. He contended that as elected representatives of the people,
members of Parliament are the agents of development for those very people
they represent and as such, had the interest and duty to monitor
government programmes in their constituencies.

Counsel contended that the oversight function of Parliamentary Committees

over the Executive neither prohibits nor replaces the individual member of
Parliament’s function and duty to monitor government programmes.
Emphasizing that the people have a right to development, counsel submitted
that provisions relating thereto in the Constitution must be expansively
interpreted looking at the Constitution as a whole. He prayed court to find
that the payment of the Shs 20m to each member of the 8 th Parliament was
consistent with Articles 79 and 85 of the Constitution.

Issue 3:
On this issue, counsel submitted that the payments made to the members of
Parliament totaling to Shs. 6.2bn were embodied in the estimates of
allowances of members of Parliament as per annexture “A2” to the affidavit
in rebuttal of the 2 nd petitioner. Counsel contended that his submissions on
issues 1 and 2 showed that the actions of the Speaker, Clerk to Parliament,
Secretary to the Treasury and the Minister of Finance were all consistent
with the Constitution and the relevant enabling laws and, therefore, they did
not breach the duty to prevent wastage of public resources.

Issue 4:
Regarding issue four, counsel submitted that the petitioners are not entitled
to any of the remedies, reliefs declarations and orders they sought and that
their petition had no merit. He prayed court to disallow the issue and
dismiss the petition with costs.

Arguing the case for the 2 nd respondent, her counsel fully associated herself
with the submissions of counsel for the 1 st respondent and added that
members of Parliament are elected individually in their constituencies and
are, therefore, answerable to their constituents individually. She contended
that it was a misconception for the petitioners to argue that the function of
monitoring government programmes was limited to Committees of
Parliament only since Article 90 does not state anywhere that members of
Parliament have no role, individually or otherwise, to monitor government
programmes.

She further submitted that the doctrine of the Separation Of Powers

enshrined in the Constitution is intended to avoid unnecessary interference
by one arm of government in the functions of the others. He referred court to
the case of Attorney General vs Maj. Gen. David Tinyefunza Supreme
Court Constitutional Appeal No.1 of 1997.

Counsel contended that MPs were elected by the people as their

representatives and therefore any decision of Parliament is the decision of
the People. She pointed out that Parliament enacted the Appropriation Act,
2010/2011, which incorporated the budget estimates of the Parliamentary
Commission. She emphasized that payments made under that Act are legal
and not unconstitutional and that those payments needed no further
Parliamentary approval. Counsel concluded by praying that the petition be
dismissed with costs.
Reply by the petitioners
Counsel for the petitioners submitted, by way of reply, that it was the case of
the petitioners that everything done was wrongly done.

On the separation of powers, counsel submitted that there were procedures

that were not followed and court can inquire into this under Article 137 (3)
(b) of the Constitution. Counsel invited Court to consider the case of
Patricia McKenna vs An Taoiseach and Others (No. 2) [SC Nos. 361 and
366 of 1995] Ireland.

Principles of constitutional interpretation:

We consider the following to be the relevant principles of constitutional
interpretation on the matter before Court.

(1) The principles which govern the construction of statutes also apply to the
construction of constitutional provisions. (The Republic vs EL Mann (1969)
E.A 357.)
(i)
The widest construction possible in its context should be given according to
the ordinary meaning of the words used, and each general word should be
held to extend to all ancillary and subsidiary matters. In certain context, a
liberal interpretation of the constitutional provision may be called for.
(ii)
A constitutional provision containing a fundamental right is a permanent
provision intended to cater for all times to come and therefore, should be
given a dynamic progressive and liberal flexible interpretation, keeping in
mind the ideals of the people and their social economic and political-cultural
values so as to extend fully the benefit of the right to those it is intended for.
(South Dakota vs. North Carolina, 192, US 268 1940 LED 448.)
(iii) The entire Constitution has to be read together as an integrated whole
and with no one particular provision destroying the other, but rather each
sustaining the other. This is the rule of harmony, completeness and
exhaustiveness and the rule of paramouncy of the written Constitution.
(Paul K. Ssemogerere and 2 others vs. AG Supreme Court Constitutional
Appeal No. 1 of 2002)
(iv)
No one provision of the Constitution is to be segregated from the others and
be considered alone, but, all provisions bearing upon a particular subject
are to be brought into view and be interpreted as to effectuate the greater
purpose of the instrument.
(v)
Judicial power is derived from the people and shall be exercised by courts
established under the Constitution in the name of the people and in
conformity with the law and with the values, norms and aspirations of the
people and courts shall administer substantive justice without undue regard
to technicalities (Article 126(1) and (2) (e) of the Constitution of Uganda,
1995.)
(vi)
The Constitution is the Supreme law of the land and forms the standard
upon which all other laws are judged. Any law that is inconsistent or in
contravention of the Constitution is null and void to the extent of the
inconsistency. (Article 2(1) and (2) of the Uganda Constitution, 1995)
(vii)
Fundamental rights and freedoms guaranteed under the Constitution are to
be interpreted having general regard to evolving standards of human dignity.
See also the case of Uganda Law Society vs. Attorney General
Constitutional Petition No. 18 of 2005.

Court’s consideration of the issues

Keeping in mind the above principles, we shall now proceed to consider the
framed issues.
Issue 1:
The gist of issue one is the Petitioner’s complaint that the acts of
authorization, withdrawal and payment of Shs. 20m to each member of the
8th Parliament was unconstitutional by reason of being inconsistent with and
in contravention of Articles 1(1), (2) and (3), 79, 85(1) and (2), 154 (1), (2)
and (3) and 164 (2) of the Constitution.
Article 1 provides:
“Article (1) All power belongs to the people who shall exercise their
sovereignty in accordance with this Constitution.
(2) Without limiting the effect of clause (1) of this article, all
authority in the State emanates from the people of Uganda; and the
people shall be governed through their will and consent.
(3) All power and authority of Government and its organs derive
from this Constitution, which in turn derives its authority from the
people who consent to be governed in accordance with this
Constitution.

Article 79 provides:
“Article 79 (1) Subject to the provisions of this Constitution,
Parliament shall have power to make laws on any matter for the peace,
order, development and good governance of Uganda.
(2) Except as provided in this Constitution, no person or body other
than Parliament shall have power to make provisions having the force
of law in Uganda except under authority conferred by an Act of
Parliament.
(3) Parliament shall protect this Constitution and promote the
democratic governance of Uganda.”
Article 85 provides:
“Article 85 (1) A member of Parliament shall be paid such emoluments,
such gratuity and pension, and shall be provided with such facilities, as
may be determined by Parliament.
(2) A member of Parliament shall not hold any office of profit or
emolument likely to compromise his or her office.”

Article 154 provides:

“Article 154 (1) No monies shall be withdrawn from the Consolidated
Fund except—
(a)
to meet expenditure charged on the fund by this Constitution or
by an Act of Parliament; or
(b) where the issue of those monies has been authorized by an
Appropriation Act, a Supplementary Appropriation Act or as provided
under clause (4) of this Article.
(2) No monies shall be withdrawn from any public fund of Uganda other
than the Consolidated Fund, unless the issue of those monies has been
authorised by law.
(3) No monies shall be withdrawn from the Consolidated Fund unless
the withdrawal has been approved by the Auditor General and in the
manner prescribed by Parliament.

Article 164 (2) provides:

“Article 164(1) ………………………………………………………………………
(2) Any person holding a political or public office who directs or
concurs in the use of public funds contrary to existing instructions
shall be accountable for any loss arising from that use and shall be
required to make good the loss even if he or she has ceased to hold that
office.”
We note that Parliament, duly elected by the people of Uganda, enacted the
Administration of Parliament Act, Cap 257 of the Laws of Uganda, the
Appropriation Act 2010/2011 and the Public Finance and Accountability
Act, Act 6 of 2003, all of them pursuant to Article 79 of the Constitution.

A need for additional funds for members of the 8 th Parliament to monitor

government programmes was identified. The Speaker of Parliament, as
Chairperson of the Parliamentary Commission and acting together with the
other authorized officers of the Commission, who included the Commission
Secretary, initiated the process of procuring the needed funds from the
Ministry of Finance. Prior to that, the Parliamentary Commission, according
to the evidence on record, had considered the money it needed for its
operations in the Financial Year (FY), 2010/2011 and submitted it to
Parliament. Parliament approved the same as part of the Appropriation Act
2010 – 2011 under programme 2 with a total of Shs. 59 bn. See Annexture
“A2” to the affidavit in rebuttal of Hon Atim Anywar Odwongo Beatrice, the
2nd Petitioner. This annexture clearly shows at page 24 the said approved
amount of Shs. 59bn which amount included, among other funds, money for
members of Parliament’s salaries and allowances. It is thus an established
fact that the money, the subject of this petition had already been approved
and voted by Parliament to be used as salaries and allowances by members
of Parliament in the FY 2010/2011. What happened was that this already
voted for and allocated amount of Shs. 6.2 bn, was accessed by Parliament
by frontloading the same from the 4 th to the 2nd quarter of the FY
2010/2011. This was done after obtaining the approval of the relevant
authority in the Ministry of Finance Planning and Economic Development.

The Ministry of Finance gave its approval acting under the powers conferred
on it under Regulation (Reg.) 39 of the Public Finance and Accountability
Regulations, which provides:
Regulation 39 Virements or re-allocations within a vote.
“39 (1) The Minister has discretionary powers to vary the amount
allocated within a vote, provided that—
a)
the total amount authorized by Parliament for that vote in an
Appropriation Act is not exceeded;
b) the variation is not so large or important as to represent a
change in policy;
c) the changes made are not novel or contentious; and
d) any virements made will from the outset not involve heavy
liabilities in future years.
(1)
The power of the Minister to vary the amount allocated within a vote
may be delegated in writing to the Secretary to the Treasury or
accounting officer.
(2) All virements within a vote shall be the subject of an application
for virement addressed to the Secretary to the Treasury and copied to
the Accountant General and the Auditor General—
a)
showing the amounts involved;
b) identifying the items where extra provision is required;
c) identifying, where appropriate, any delegated authority for the
re-allocation;
d) giving appropriate explanation for the shortfall in the original
provision;
e) clearly identifying the items with the anticipated savings; and
f) giving appropriate explanations and the reasons for the savings
being available.
(3)
In order to ensure that the savings identified are genuine, items from
which funds have been transferred will no longer be eligible for the
provision of additional funds by a Supplementary Appropriation Act or
subsequent virements.
(4) In the absence of delegated authority, applications for virement
shall be submitted by the Secretary to the Treasury for consideration by
the Minister, and no such application will be approved by the Secretary
to the Treasury without the specific authority of the Minister.
(5) On approval of an application under sub regulation (5) of this
Regulation, a warrant for virement within a vote shall be issued to the
accounting officer concerned and copied to the Accountant General;
and on receipt of his or her copy of the warrant, the Accountant
General may, where necessary, issue an amended accounting warrant to
the accounting officer reducing the amount authorized on the item
which has had its available funds reduced.
(6) Expenditure on the item which has had its available funds
increased by the accounting warrant shall at all times remain within
the limits of any accounting warrant currently in force.

The Ministry did not go by way of approval of a supplementary under Reg.

38 for, this was not necessary since there was enough money to cover the
item of the expenditure sought from the already approved amount.
Regulation 38 was, therefore irrelevant to the procurement of the money the
subject of this Petition.

In his affidavit, the Secretary to the Treasury elaborately explained the whole
process in the following terms:

On the 23rd of November 2010, the Clerk to Parliament wrote to the Hon.
Minister of Finance requesting for a supplementary funding of Ug.Sh. 6.54
billion to enable him pay members of Parliament allowances for purposes of
monitoring government programmes. The Clerk to Parliament was reacting
to the Rt. Hon. Speaker’s letter dated 23 rd November 2010 on the same
subject. On the 24 th November 2010 the Hon. Minister of Finance replied to
the Clerk to Parliament informing him that due to pressures being exerted
on the budget at that time, it was not possible to issue a supplementary as
requested. Consequently, the Minister advised the Clerk to reallocate within
the available Parliamentary annual balances for the FY 2010/2011 to meet
the required expenditure. Pursuant to that advice, the Clerk to Parliament
wrote to the Secretary to the Treasury confirming that the allowances for
Members of Parliament on which supplementary funds were required had
enough balances to cover the necessary expenditure required subject to
such funds being frontloaded from the forth to the second quarter of the
financial year and that all he had to do was to adjust the recurrent cash
limit for the second quarter by the amount required and frontload the
budgeted fund by the same amount. This meant that there was no need for a
supplementary budget or approval of Parliament for those funds since the
item, allowances for Members of Parliament, had already been approved in
2010/2011 FY. It only required the permission of the Secretary to the
Treasury to allow Parliament to spend amounts in allowances budgeted for
in the second quarter, which they would have spent, under normal
circumstances, in the 4 th quarter of the FY 2010/2011.

This Court received further uncontroverted evidence of the Secretary to the

Treasury that in compliance with Regulation 39, he authorized the
frontloading of the money from the fourth to the second quarter.

We are satisfied, on the evidenced before us that the Minister of Finance and
Economic Development, who is mandated by the Constitution and the law to
supervise and monitor the public finances of Uganda under S.3 (b) of the
Public Finance and Accountability Act, the Speaker of Parliament who,
under S.2(4) of the Administration of Parliament Act, is the Chairperson of
the Parliamentary Commission, the Secretary to the Treasury and the Clerk
to Parliament, all acted in accordance with the law in the process that led to
the authorization, withdrawal and payment of Shs. 20m to each member of
the 8th Parliament.

In as far as the payments in issue were made in accordance with laws duly
enacted by Parliament, we are not persuaded that the acts complained of by
the Petitioners in this Petition in any way contravened Article 79 of the
Constitution. By enacting the Appropriation Act 2010/2011, Parliament
approved the payments in issue in the Petition in strict compliance with
Article 85 of the Constitution. There was, therefore, no need for further
Parliamentary approval by resolution or otherwise.

Similarly, we find that the payment was done in compliance with Article
154 of the Constitution since the same was effected under laws duly enacted
by Parliament and with all the requisite approvals. Therefore, no money
relevant to this petition was withdrawn from the Consolidated Fund without
Parliamentary approval.

Article 164 deals with Accountability regarding public funds and 164 (2)
specifically provides for accountability by any person holding a political or
public office who, unlawfully, causes loss of public funds by requiring
him/her to make good such loss. The Shs. 20m paid out to and received by
each of the members of the 8 th Parliament was part of the funds approved for
use by Parliament under programme 2 as indicated above. We are convinced
that the Accounting Officers acted within the mandate emanating from
Regulation 39 (supra).
We, therefore, find that the acts of authorizing, withdrawal and payment of
Shs. 20m to each of the member of the 8 th Parliament were neither
inconsistent nor in contravention of Articles 1(1), (2) and (3), 79, 85 (1)
and (2), 154 (1) (2) and (3) and 164(2) of the Constitution. We, therefore,
find in the negative on this issue.

Issue 2:
The gist of issue 2 is the petitioner’s complaint that the act of paying
individual members of Parliament to monitor government programmes was
inconsistent with Articles 79, 85 (1) and (2) of the Constitution and the
Rules of Procedure of Parliament made pursuant to Article 90(3) of the
Constitution. To the petitioners, the function of monitoring government
programmes was the sole preserve of Parliamentary Committees.

We have already dealt with Articles 79 and 85 of the Constitution in so far

as they related to the payments of the money the subject of this petition in
our resolution of issue one. We need not repeat that here.
Article 90 provides:
“Article 90 Committees of Parliament
(1)
Parliament shall appoint committees necessary for the efficient
discharge of its functions.
(2) Parliament shall, by its rules of procedure, prescribe the powers,
composition and functions of its committees.

Article 94, which we find relevant to the Rules of Procedure of

Parliamentary Committee provides:
“Article 94(1) Subject to the provisions of this Constitution,
Parliament may make rules to regulate its own procedure, including the
procedure of its committees.
We have carefully considered Article 164 (3) of the Constitution, Rules 90,
94, 133 and 161 of the Rules of Procedure of Parliament. By virtue of Article
164 (3), Parliament is empowered to monitor all expenditure of public funds.
In our view, monitoring government expenditure does not stop at examining
papers at the Public Accounts Committee meetings only or indeed at any
other Parliamentary Committee. It includes following the money to the
ground where it is alleged to have been spent.

There is nothing in the Constitution or indeed in any other law or any of the
said Rules of Procedure of Parliament that prohibits a member of
Parliament, individually or otherwise, from monitoring government
programmes in his/her constituency. In addition to this, we hold the view
that the overall functions of Parliament under Article 79 of the Constitution
of making laws on any matter for peace, order, development and good
governance of Uganda, read together with Article 164(3) are inclusive,
rather than exclusive, of the responsibility of an individual member of
Parliament carrying out a monitoring role in addition to other bodies or
persons in that member’s constituency.

Further, we accept as correct the submission by counsel for the respondents

that the members of Parliament are individually agents of development in
their respective constituencies with interest and duty to individually monitor
government programmes. This is good sense. We also note from the evidence
before us that the Shs. 20m paid to each member of the 8 th Parliament was
for monitoring government expenditure on all government programmes on
the ground and not (NAADS) only.
We observe that the timing of the payment may appear unsuitable but, that
notwithstanding, no constitutional provision was breached in our considered
view. It may also be true that not all members of the 8 th Parliament may
have been experts in certain disciplines but they were the owners of those
programmes together with their Constituents. It is then not farfetched to say
that they could competently monitor, even if only politically, what was on the
ground in their respective constituencies regarding government programmes.

We note the submission by counsel for the 2 nd respondent to the effect that
under the doctrine of the Separation of Powers this Court should not
question the acts of approval, withdrawal and payment of the money, the
subject of this petition, by the 1 st and 2nd respondents and of the receipt and
utilization of the same by the members of the 8 th Parliament who received
and used it. This Court is acutely alive to the operation of the said doctrine
of the Separation of Powers as expounded by the Supreme Court in
Attorney General vs. Maj. General David Tinyefunza (supra). We however,
do not accept the said submission by counsel for the 2 nd respondent. This
Court has not exceeded the parameters set in the cited case in considering
the matters raised in this petition. It has acted within its jurisdiction under
Article 137 of the Constitution.

Counsel for the petitioners also contended that it was erroneous for the Shs.
20m paid to each Member of the 8 th Parliament to have been taxed. The
Court is not in the instant petition concerned with how taxes are deducted
and remitted to taxing authorities. This does not have a direct bearing on
the principle under Courts’ consideration. We, therefore, find in the negative
on issue two.

Issue 3:
The gist in issue 3 is the complaint by the petitioners that the acts of
receiving and using Shs. 20m by each of the member of the 8 th Parliament
was an abuse of public trust bestowed upon them and a negation of their
duties to prevent waste of public resources in contravention of Articles 1,
8A, 17(1) (i), 164(2) and (3) of the Constitution.
Article 17 provides:
“Article 17 Duties of a Citizen.
(1)
It is the duty of every citizen of Uganda—

(i) to combat corruption and misuse or wastage of public

property;”
Article 8A provides:
“Article 8 (A)
(1)
Uganda shall be governed based on principles of
national interest and common good enshrined in the
national objectives and directive principles of state
policy.
(2) Parliament shall make relevant laws for purposes of
giving full effect to clause (1) of this Article.”
Objective No. (XXVI) of the National objectives of State Policy provides:

“XXVI (i) All public offices shall be held in trust for the people.
(ii) All persons placed in positions of leadership and responsibility
shall, in their work, be answerable to the people.
(iii) All lawful measures shall be taken to expose, combat and
eradicate corruption and abuse or misuse of power by those holding
political and other public offices.”

We have already shown in this judgment in our resolution of issues one and
two above how the payments made to the members of the 8 th Parliament
were lawfully made with all the required approvals. We have no evidence that
any of that money was used by any of the recipients of the same in a way
that amounted to abuse of public trust bestowed by the Constitution on
those members of Parliament or indeed on any other public official.
Similarly, no satisfactory evidence has been adduced to Court to show that
that money was used by any of its recipients in a way that amounted to a
negation of the duty of any of such a Member of Parliament to prevent
wastage of public resources in contravention of any of the Constitutional
Provisions cited. It is trite law that Courts of law act on credible evidence
adduced before them and do not indulge in conjecture, speculation,
attractive reasoning or fanciful theories. See Okale vs Republic 1965 EA
555, Kanalusasi vs Uganda [1998 – 1990] HCB and Silaagi Buroro Gordon
vs Uganda Court of Appeal Criminal Appeal No. 122/2005, (unreported).

We, therefore, find that the act of receiving and using the Shs. 20m paid to
each of the members of the 8 th Parliament by those who chose to use it, was
not an abuse of public trust bestowed upon those members of Parliament. It
was not a negation of their duty to prevent waste of public resources or
corruption either. It was, therefore, not in contravention of Articles 1, 17 (1)
(i), 164 (2) and (3) and National Objectives and Direct Principles of State
Policy Nos XXVI and XXVII of the Constitution.

We, consequently, find in the negative on this issue too.

Issue 4
Issue 4 is about the reliefs sought by the petitioners. Having held as we
have, on issues 1 to 3, we find that the petitioners are not entitled to any of
the remedies, reliefs and declarations sought and we decline to grant any.

In the result, this petition fails and is dismissed for lack of merit.
Each party shall bear their own costs.

Dated at Kampala this…16 th …..day of …November....2011

………………………………………………………….
A.E.N.MPAGI-BAHIGEINE
DEPUTY CHIEF JUSTICE/PRESIDENT CONSTITUTIONAL
COURT……………………………………………….………
S.B.K.KAVUMA
JUSTICE OF APPEAL/CONSTITUTIONAL COURT

A.S.NSHIMYE

JUSTICE OF APPEAL/CONSTITUTIONAL
COURT………………………………………………………

M.S.ARACH AMOKO
JUSTICE OF APPEAL/CONSTITUTIONAL COURT

………………………………………………..
REMMY KASULE
JUSTICE OF APPEAL/CONSTITUTIONAL COURT

THE ENVIRONMENTAL ACTION NETWORK LTD. –VS- THE ATTORNEY

GENERAL & NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
(NEMA)
HC. MISC. APPLIC. NO. 39 OF 2001
Before :The Honourable Principal Judge – Mr. Justice J. H. Ntabgoba
Evidence : Whether evidence that smoking in public was hearsay
Evidence : Whether experts were essential in establishing the effects of
public smoking as provided for in Section 43 of the
Evidence Act
Civil Procedure : Whether the Attorney General and NEMA ought to have
been given 45 days notice as provided for in S.1 of Act No.
20 of 1969 (as amended)
Civil Procedure : Whether the application ought to have been brought under
Order 1 Rule 8 of the CPR
On the 31st May 2001 an application by notice of motion was filed in this court
by a limited liability company called The Environmental Action Network Ltd.
Herein referred to as the applicant. In the affidavit of Phillip Karugaba sworn in
support of the application, he described the applicant as a public interest
litigation group bringing the application bona fide in its own behalf and on
behalf of the non-smoking members of the public under Article 50(2) of the
Constitution, to protect their rights to a clean and healthy environment, their
right to life and for the general good of public health in Uganda.
The respondents brought preliminary objections which are put in the issues
there above.
Held;
a) The veracity and credibility of evidence is challenged during the hearing
when such evidence is adduced and not preliminary objection. This
preliminary objection is over ruled basing on the evidence the applicant
seeks to adduce by affidavits.
b) Application brought under Article 50 of the Constitution are governed by
the fundamental rights and freedoms (enforcement procedure) Rule (S.I
No. 26/92) therefore the objection that the application did not comply with
S.I of Act No. 20 of 1969 (as amended) is over ruled
c) Order 1 Rule 8 of the Civil Procedure Rules governs actions by or against
the parties (i.e plaintiff or defendant) together with other parties, that they
seek to represent, and they most have similar interest in the suit. On the
other hand, Article 50 of the constitution as not require that the applicant
must have the same interest as the parties he or she seeks to represent or
for whose benefit the action is brought. Therefore objection (c) is
overruled.
d) The preliminary objections raised on behalf of the Attorney General and
NEMA, the respondents are overruled. And they are ordered to pay costs
for the consequent delay in hearing the main application
RULING
On the 31st May, 2001 an application by notice of motion was filed in this
Court by a Limited Liability Company called The Environmental Action Network
Ltd. I will herein
refer to it as the applicant. In the affidavit of Phillip Karugaba sworn in support
of the application, he describes the applicant as a Public Interest Litigation
group bringing the application bona fide in its own behalf and on behalf of the
non-smoking members of the
public under Article 50(2) of the Constitution, to protect their rights to a clean
and healthy environment, their right to life and for the general good of public
health in Uganda.
Mr. Karugaba depones that he has recently learnt of several medical reports
highlighting the dangers of exposure to second hand smoke or environmental
tobacco smoke. He sets out various reports which he says have highlighted the
dangers of exposure to second hand smoke or environmental tobacco smoke.
They include:- The United States Surgeon General’s Report: - “ The Health
consequences of Involuntary
Smoking (1986) which contains the following conclusions: -
• involuntary smoking is a cause of disease, including lung cancer, in healthy
nonsmokers;
• the children of parents who smoke compared with children of non-smoking
parents have increased frequency of respiratory infections, increased
respiratory
symptoms and slightly smaller rates of increase in lung functions as the lung
matures;
• the simple separation of smokers and non-smokers within the same air space
may, reduce, but not eliminate the exposure of non-smokers to environmental
tobacco smoke (ETS).
The United States Environmental Protection Agency (EPA) Report: Respiratory
health effects of passive smoking: Lung cancer and other disorders in children
(1992) made the following major conclusions: -
• that based on the weight of the available scientific evidence, exposure to
Environmental Tobacco Smoke presents a serious and substantial health
impact;
• Environmental Tobacco Smoke is a human lung carcinogen, responsible for
approximately 3,000 lung cancer deaths annually in us non-smokers;
• Environmental Tobacco Smoke exposure is usually associated with increased
risk
of lower respiratory infections such as bronchitis, pneumonia. 150,000 to
300,000
cases annually in infants and young children up to 18 months of age are
attributed
to ETS;
• Environmental Tobacco Smoke is casually associated with increased
prevalence
of fluid in the middle ear, symptoms of upper respiratory tract irritation and
small
but significant reduction in lung function;
• Environmental Tobacco Smoke exposure is casually associated with
additional
episodes and increased severity of symptoms in children with asthma 200,000
to
1,000,000 asthmatic children have their condition worsened by exposure to
Environmental Tobacco Smoke;
• Environmental tobacco smoke is a risk factor for new cases of asthma in
children
who have not previously displayed symptoms;
• Environmental Tobacco Smoke is classified as a Group A Carcinogen under
EPA’s Carcinogen assessment guidelines. This classification is reserved for
those
compounds or mixtures, which have been shown to cause Cancer in humans,
based on studies in human populations and for which no safe level of exposure
is
known.
The National Health and Medical Research Council Report: “the Health Effects
of
Passive Smoking: A scientific Information Paper” concludes that: -
• Passive smoking contributes significantly to the risk of Sudden Infant Death
Syndrome;
• Children Exposed to Environmental Tobacco Smoke are about 40% more
likely to suffer from asthmatic symptoms than those who are not exposed;
• About 8% of childhood asthma is attributed to passive smoking (about
46,500
children per year);
• The risk of heart attack or death from coronary heart disease is about 24%
higher in people who never smoke but who live with a smoker, compared to
unexposed people who never smoke;
• People who never smoke and live with a smoker have a 30% increase in risk
of developing lung cancer compared to people who never smoke and live with a
smoker, to about 12 new cases of lung cancer and 11 deaths from lung cancer
per year who never smoke”.
I would stop here but suffice it to say that Phillip Karugaba, in his affidavit
gave many more details about the dangerous effects of Passive smoking.
I would myself hesitate to challenge his averments because they are supported
by research reports and scientific disclosures.
In paragraph 17 of his affidavit he depones that “ non-smoking Ugandans have
a constitutional right to life under Article 22 and constitutional rights to a
clean and healthy environment under Article 39 of the Constitution of the
Republic of Uganda”. In paragraph 18 of the affidavit he refers to the United
Nations Convention on the Rights
of the Child, to which Uganda is a signatory and states that “ children have
rights to adequate standards of health under Article 24, a right to life under
Article 6 and a right to an adequate standard of living under Article 27”. He
adds in paragraph 19 of the affidavit that “ according to a recent report: -
“Tobacco and Children’s’ rights” released by the World Health Organization,
exposure to second hand smoke is an infringement of a child’s right to life and
to an adequate standard of health”. Mr. Karugaba concludes that “ the said
rights of non-smokers and the rights of the children are being threatened by
the unrestricted practice of persons smoking in public places”. (See paragraph
20 of the affidavit).
It is in light of the above that this application seeks from this Court the
following
declarations and orders: -
A declaration that smoking in public places constitutes a violation of the rights
of nonsmokers to a clean and healthy environment as prescribed under Article
39 of the Constitution of the Republic of Uganda and s. 4 of the National
Environment Statute 1995.
If I may comment on this declaration being sought, my view is that it is too
sweeping. It could have been worded thus :-
1) “A declaration that unregulated smoking in public places constitutes a
violation of the rights of non-smoking members of the public; and that the
respondents should take appropriate measures to regulate smoking in public
places so as to provide a clean and healthy environment to the non-smoking
members of the public”.
2) A declaration that smoking in public places constitutes a violation of the
rights of the non-smoking members of the public to the right to life as
prescribed under Article 22 of the Constitution of the Republic of Uganda.
Here again I thought that the wording of the prayer should have been that “
Unregulated smoking in public places violates the right to life of non-smoking
members of the public contrary to Article 22 of the Constitution ---.
3) A declaration that smoking in a public place constitutes an offence under Ss.
156 and 172 of the Penal Code.
4) An order that the 1st Respondent (i.e. The Attorney- General) take steps to
ensure the prosecution of persons committing offences under sections 156 and
172 of the Penal Code Act.
5) An order that the second respondent takes the necessary steps to ensure the
enjoyment by the Ugandan public of their right to a clean and healthy
environment.
It is pertinent, at this juncture, to point out that in my ruling of 17/07/2001, I
struck out prayers 3 and 4 of this application on the ground that smoking in
public is not a crime either under the Penal Code Act or under any of our
statutes, and Courts have no jurisdiction to create crimes or criminalise any
acts. Nor do Courts possess any powers to
order prosecution, which is the power strictly reserved for the Director of Public
Prosecution. This present ruling is on several preliminary objections raised by
Mr. Oluka Henry, a State Attorney which appear in paragraph 8 of his
Additional Affidavit in Reply sworn on the 18th July, 2001. I will do no better
than extract the entire paragraph: - “That the Respondent will at the hearing of
this application raise preliminary objections seeking to declare that the
applicant has no cause of action, that the evidence on the affidavit in support
is based on hearsay; that the applicant company is not an expert on the effects
of secondary cigarette smoke; that the applicant cannot claim to represent the
Uganda public and that no notice that the present suit would be filed against
the respondents was filed as provided for in the Civil Procedure and Limitations
( Miscellaneous Provisions) Act as amended of 1969 and the Civil Procedure
and Limitations (Miscellaneous Provisions)(Amendment) Act 2000”.
Paragraph 8 of Mr. Oluka’s affidavit raises the following issues which I must
discuss inthis ruling: -
• That the evidence on the affidavit in support of application No. 39/2001 is
based on hearsay.
• That the applicant company is not an expert on the effects of secondary
cigarette smoking.
• That the applicant company cannot claim to represent the Ugandan public.
( Here I suppose Mr. Oluka is referring to the non-smoking members of he
Ugandan
public).
• That the applicant (suit) did not comply with the provision S. 43 of the
EvidenceAct. The section is about persons who give opinion on foreign law, or
science or art etc. as experts.
In some situations Court may wish to call such experts to give opinion, but in
some other
situations the Court could take Judicial notice of the opinions without having
to necessarily call them. I, however, agree with Counsel for the applicant that
even if it was compulsory for experts mentioned in S. 43 of the Evidence Act to
testify, that would not be necessary with regard to evidence produced by
affidavit because that is the import of S. 2 of the Evidence Act.
Besides, Mr. Oluka’s preliminary point in which he brands the documentary
presentation,
by affidavit, of scientific findings and reports, is premature and therefore
misplaced. The veracity and credibility of evidence is challenged during the
hearing when such evidence is adduced and not preliminary objection. I would
overrule this preliminary objection based on the evidence the applicant seeks
to adduce by affidavits.
I will now deal with another preliminary objection by Mr. Oluka where he
challenges the application on the ground that it did not comply with s. 1 of Act
No. 20 of 1969 (as amended), which requires the Attorney-General and
specified corporations, including
NEMA, to be given a notice of intention to sue of 45 days. Here again, with due
respect, Mr. Oluka’s objection is misconceived and should be overruled.
Applications brought under Article 50 of the Constitution are governed by the
Fundamental Rights and Freedoms (Enforcement Procedure) Rules (S.I. No.
26/92). Although Rule 4 provides that no motion (under Rule 3) shall be made
without notice to the Attorney-General and
any other party affected by the application, Rule 7 clearly stipulates that “
subject to the provisions of these Rules, the Civil Procedure Act and the Rules
thereunder shall apply in relation to application”.
Applying the so called golden rule of Statutory Interpretation, we would be
wrong if we assumed that besides Rule 7 of S.I. No. 26 of 1992, Parliament
meant that any other rule of procedure should be applied. It is for this reason
that I think that applications pursuant to Article 50 of the Constitution must
be strictly restricted to the Civil Procedure Act and the rules thereunder and
not under S.1 of Act No. 20 of 1969. The Attorney-General and
NEMA in this application therefore got the notice they are supposed to get.
Incidentally, this was also the decision in Rwanyarare & 4 others Vs.
Attorney-General (High Court Miscellaneous. Application No. 85 of 1993). If
the rationale for applying the Civil Procedure Act and the Rules thereunder
instead of S.1. of Act 20 of 1969, the Court has
this to say: - “The object of S. 80 is to give the Secretary of State for India an
opportunity of settling the claim, if so advised, without litigation or, to enable
him to have an opportunity to investigate the alleged cause of complaint and to
make amends, if he thought fit, before he was impleaded in the suit”.
I agree with this requirement that the respondent, usually Government or a
Scheduled Corporation which is supposed to be busy as Government, needs
sufficient period of time to investigate a case intended to be brought against it
so as to be able to avoid unnecessary expense on protracted litigation. This
rationale cannot apply to a matter where the rights and freedoms of the people
are being or about to be infringed. The people cannot afford to wait 45 days
before pre-emptive action is applied by Court. They
would need immediate and urgent redress. They need a short period which is
one provided under the ordinary rules of procedure provided by the Civil
Procedure Act and its Rules. To demand from the aggrieved party a 45 days
notice is to condemn them to
infringement of their rights and freedoms for that period which this Court
would not be prepared to do. Any alleged infringement must be investigated
expeditiously before damage is done.
Other preliminary objection raised by the learned State Attorney is that the
applicant cannot claim to represent the Ugandan Public and therefore they
should have brought the application under Order 1 Rule 8 of the Civil
Procedure Rules which demands that: -
8(1) Where there are numerous persons having the same interest in one suit,
one or more of such persons may, with the permission of the Court, sue or be
sued, or may defend in such suit, on behalf of or for the benefit of all persons
so interested. But the Court shall in such case give notice of the institution of
the suit to all such persons either by personal service or, where, from the
number of persons or any other cause, such service is not reasonably
practicable, by public advertisement, as the Court in each case may direct”.
(2) Any person on whose behalf or for whose benefit a suit is instituted or
defended under sub-rule (1) may apply to the Court to be made a party to the
suit”. Here again the State Attorney failed, in his preliminary objection, to
distinguish between actions brought in a representative capacity pursuant to
Order 1 Rule 8 of the Civil Procedure Rules, and what are called Public Interest
Litigation which are the concern of Article 50 of the Constitution and S.I. No.
26 of 1992. The two actions are distinguishable by the wording of the
enactments or instruments pursuant to which they are instituted. Order 1 Rule
8 of the Civil Procedure Rules governs actions by or against the parties (i.e.
plaintiff or defendant) together with other parties that they seek to represent,
and they must have similar interests in the suit. On the other hand, Article 50
of the Constitution does not require that the applicant must have the same
interest as the parties he or she seeks to represent or for whose benefit the
action is brought. The wording of Article 50 of the Constitution, especially
clauses (1) and (2) clearly show
what I am saying. It is instructive to quote them: -“50 (1) Any person who
claims that a fundamental or other right or freedom guaranteed
under this Constitution has been infringed or threatened, is entitled to apply to
a competent Court for redress which may include compensation.
(2) Any person or organization may bring an action against the violation of
another person’s or group’s human rights”.
Clause (2) answers Mr. Oluka’s argument that the applicant in this application
cannot claim to represent the Ugandan non-smoking public. There are also
decided cases which decided that an organization can bring a public interest
action on behalf of groups or individual members of the public even though the
applying organization has no direct individual interest in the infringing acts it
seeks to have redressed. In the case of RE. –
Vs-. I.R.C. Exp. Federation of Self- Employed (H.L. (E)) [1982] A. C. 643, Lord
Diplock said: -
“It would , in my view, be a grave lacuna in our system of public law, if a
pressure group, like the federation or even a single public – spirited tax payer,
were prevented by out-dated technical rules of locus standi, from bringing the
matter to the attention of the Court to vindicate the rule of law and get the
unlawful conduct stopped”. (See also [1901] 2 All. E.R. 93 at p. 107]”.
In his rather politico-judicial reasoning to support public interest litigation on
behalf of the poor, indigent and unprivileged members of the Tanzanian Society
by Public spirited organizations such as The Environmental Action Network
Ltd., Rugakingira, J. of the
High Court of Tanzania (as he then was) had this to say in the case of Rev.
Christopher Mtikila –Vs- The Attorney General in Tanzanian Civil Suit No.5
of 1993 (unreported): -
“The relevance of public litigation in Tanzania cannot be over-emphasized.
Having regard to our socio-economic conditions, these (sic) development
promise more hopes to our people than any other strategy currently in place.
First of all, illiteracy is still rampant. We were recently told that Tanzania is
second in Africa in wiping out illiteracy but that is a statistical juggling which
is not reflected on the ground. If we were that literate it would have been
unnecessary for Hanang District Council to pass by laws for compulsory adult
education which were recently published as Government Notice No. 191 of
1994. By reason of this illiteracy a greater part of the population is unaware of
their rights, let alone how the same can be realised.
Secondly, Tanzanians are massively poor. Our ranking in the World on the
basis of per capita income has persistently been the source of embarrassment.
Public interest litigation is a sophisticated mechanism which requires
professional handling. By reason of limited
resources that the vast majority of our people cannot afford to engage lawyers
even where they are aware of the infringement of their rights and the
perversion of the Constitution.
Other factors could be listed out but perhaps the most painful of all is that over
the years since Independence Tanzanians have developed a culture of apathy
and silence. This, in large measure is a product of institutionalized mono-party
politics which, in its repressive dimension, like detention without trial supped
up initiative and guts, the people found contentment in being receivers without
being seekers. Our leaders very well recognize this, and the emergence of
transparency in governance they have not hesitate to affirm it. When the
National Assembly was debating Hon. J. S. Warioba’s private motion on the
desirability of a referendum before some features of the Constitution were
tampered with, Hon. Sukwa said Sukwa, after the interruptions by his
colleagues, continued and said -----
“ Given all these and other circumstances., if there should spring up a
publicspirited individual and seek the Court’s intervention against legislation
or actions that pervert the Constitution, the Court, as guardian and trustee of
the Constitution and what it stands for, is under an obligation to rise-up to the
occasion and grant him standing”.
My understanding of Lugakingira J’s lengthy statement is that the interest of
public rights and freedoms transcend technicalities, especially as to the rules
of procedure leading to the protection of such rights and freedoms. This is also
the message in Lord Diplock’s
words cited above in [1901] 2 ALL E.R. 93 at p. 107.
If I may revert to Miscellaneous Application No. 39 of 2001, the applicant say
they are especially interested in the infringement of the rights and freedoms of
the poor, and children – those who cannot know and appreciate their rights
and freedoms and who do not know where to go and how to go there for
redress. It is not compelling that a body like the applicant stands up for them
and fights for their cause. I think the applicant deserves hearing and I will hear
it. The preliminary objections raised on behalf of the Attorney-General and
NEMA, the respondents, are overruled –And they are ordered to pay costs for
the consequent delay in hearing the main application. It should be urgently
fixed for hearing on merit. I so order.
J.H. NTABGOBA
PRINCIPAL JUDGE
28.08.01
 Greenwatch vs. Uganda Wildlife Authority (Chimpanzee Export Case,
2004)

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISCELLANEOUS APPLICATION NO. 92 OF 2004
(ARISING FROM MISC. CAUSE NO. 15 OF 2004)

BEFORE: HONOURABLE JUSTICE GIDEON TINYINONDI

RULING:In this application preferred under 037, rr 2(1) and 9 of the Civil.

Procedure Rules the Applicant sought "an order

of temporary injunction to issue against the Respondents, their agents
attorneys and assigns anybody or person acting in that or such similar
capacity from exporting, transporting, removing, relocating any Chimpanzee
from Uganda to the Peoples Republic of China or any other place or country in
the world until the hearing and determination of the main application herein or
until further orders of this Court. "

The grounds of the application were stated to be:

1. That there is a pending application seeking a permanent injunction against
the 1st Respondent and for declaration that the decision of the2nd Respondent
in respect of the subject matter herein is null and void abnition and the same
is pending hearing in this Court.

2. That the pending application against the Respondents has great likelihood of
success.

3. That activities the Applicants seek to restrain the Respondents from doing
are illegal and ultra vires the powers.

4. That on a balance of convenience it is just and equitable that this

application be granted.
5. The Respondents will not be prejudiced if the application is allowed but the
Applicants will be prejudiced if the Order is not granted as it will render
nugatory the main suit herein. "

One Sarah Naigaga swore an affidavit in support of the application stating:

1. That I am the Executive Director of the Applicant and the person in charge
of running its day to day affairs and swear affidavit in that capacity.

2. That the Applicant is a limited liability company limited by guarantee and

incorporated under the laws of Uganda, and it is also registered in 8ganda as a
non-governmental institution under the Laws of Uganda.

3. That the Applicant members are all Ugandans citizens of age and sounding.

4. That the objectives of the Applicant include among others the protection of
the environment, including but not limited to flora and fauna, increasing
public participation in the management of the environment and natural
resources, enhancing public participation in the enforcement of their right to a
healthy and clean environment.

5. That I have learnt from the 1st Respondent that it intends to export
Chimpanzees, from Uganda to China or elsewhere.

6. That we have had to take Court action in view of the urgency of this matter
and the fact that the Executive Director of the 1st Respondent and its official
Mr. Daniel Ankankwasa refused to talk to me about this.

7. That this followed press reports that the 1st Applicant and other official of
Government have already finalised plans to export Chimpanzees from their
Sanctuary to Zoos in The peoples` Republic of China see annexture "A1 to A5."

8. That the decision would fundamentally affect the Chimpanzees and in turn
impact negatively on the environment.
9. That by removing Chimpanzees from their natural habitat and exporting
them to China the Respondents would violet the Applicants right a clean and
healthy environment as enshrined
in the constitution.

10. That the Constitution demands that state and all its organs protect the
natural resources of Uganda including flora and fauna and as the decision to
export Chimpanzees from Uganda contravenes this directive principle of state
policy.

11. That the decision to export Chimpanzees in null and void as it was made
ultra vires the powers of the Applicants.

12. That the law empowers the Applicants to protect flora and fauna where
they are and have no powers to alter the environment or move flora and fauna
in a way that is not in the best interest of the environment.

13. That the decision to export Chimpanzees contravenes the Constitution

directive principle of state policy that requires the state to ensure conservation
on all natural resources.

14. That it is the duty of-all the people of Uganda including the Applicants to
uphold and defend the Constitution and that this application is made in that
spirit.

15. That Applicants, and all other citizens of Uganda cannot enjoy a clean and
healthy environment unless it had all its amenities, to wit air, water, land and
mineral resources, energy including solar energy and all plant and animal life.

16. That the Applicant would therefore be aggrieved by the decision and the
action of the Respondents in exporting Chimpanzees from Uganda, which
action subtracts an essential ingredient of their environment.
17. That it is estimated that there are only 5000 Chimpanzees left in Uganda
and therefore any further reduction in this number significantly affects the
fauna component of the environment in Uganda.

18. That Chimpanzees are not goods, or chattels, they do not belong to the
Government of Uganda but are Uganda`s natural heritage, and a gift from God
and the Respondents are only protecting them as trustees of the people of
Uganda.

19. That it is just and equitable that this application be granted to maintain
the status quo pending the final determination of the main application herein.

20. That id the status quo is not maintained and the Chimpanzees are
exported it will be more difficult to revere and therefore on a balance of
convenience this application ought to be granted.

21. That I swear this affidavit in support of the Applicants` application herein.

22. That all I have stated hereinabove is true and correct to the best of my
knowledge.

At the hearing Dr. Joseph Byamugisha appeared for the Respondent while Mr.
Kenneth Kakuru represented the Applicant. Dr. Byamugisha raised a
preliminary objection. He submitted that this application which arose out of
Miscellaneous Cause No. 15/2004 between the same parties should be struck
out under 07, r11 (d) of the Civil Procedure Rules. His bases for this were

a).The 1st Respondent is a scheduled corporation under the civil Procedure

and Limitation [Misc. Provisions] Act, Cap.72 of the Laws of Uganda 2000.
Section 2 thereof provides that no sit shall lie or be instituted against a
scheduled corporation until the expiry of forty-five days after written notice has
been delivered or left at its office etc. etc.
b). Before Miscellaneous Cause No. 15/2004, out of which this application
arises was filed, no such notice as required in the Act (ante) was served on the
Respondent.

Therefore Counsel`s preliminary objection, he argued, was not directed against

this application alone but also against Miscellaneous Cause No. 15/2004
which latter application was itself an incompetent
suit on account of violating section 2 of the Act (ante).

In support of his submissions learned Counsel cited LYAKIYE -VS- ATTORNEY

GENERAL: [19731] ULR 124 and KAYONDO-VS-ATTORNEY GENERAL:
1988/90 HCB 127. He prayed that this application and Miscellaneous Cause
No. 15/2004 be struck out.

Mr. Kakuru replied as hereunder. He agreed that service of statutory notice on

a corporation was mandatory. He also agreed with the Legal position in the
cases cited by Dr. Byamugisha. He, however, pointed out that position obtains
in ordinary suits brought under the Civil Procedure Act and the Civil Procedure
Rules.

That this application and the cause out of which it arises were not one of such
suits. That

Miscellaneous Cause No. 15 of 2004 was brought under section 50 of the

Constitution and Statutory Instrument No. 26 ofr 1992. That in DR. J.W.
RWANYARARE AND 2 OTHERS -V-S-ATTORNEY GENERAL: MISC. APPLICA
TION NO. 85 OF 1993 the High Court held that in matters concerning the
enforcement of human rights under the Constitution no statutory notice was
required because to do so would result in absurdity as the effect of it would be
to condone the violation of the right and deny the Applicant the remedy.
Learned Counsel further argued that the Rules (under Statutory Instrument 26
of 1992) are specific for the enforcement of the rights and there is no statutory
provision for a notice.

He cited
MISCELLANEOUS APPLICA TION NO. 140 OF 2002: GREENWATCH -VS-
ATTORNEY GENERAL AND NEMA and MISCELLANEOUS

APPLICA TION NO 139 OF 2001 : GREENWA TCH -V-S ATTORNEY GENERAL

AND NEMA.

Finally learned Counsel referred to the decision of the" Constitutional Court in

UGANDA ASSOCIA TION OF WOMEN LA WYERS AND 5 ,OTHERS -VS-
ATTORNEY GENERAL where the “thirty days” rule under the provision of rule
4(1) of the Fundamental Rights and Freedoms [Enforcement Procedure] Rules
1992 (legal Notice no. 4/1960 was discussed.

Dr. Byamugisha`s reply was as follows. Article 50 of the Constitution was clear.
It had two heads

a). whether a right has been infringed;

b). where the right is being threatened with infringement.

That in the former the reasoning by the High Court that a statutory notice
would delay the infringement of the right would not be right. That therefore if
that reasoning cannot stand in (a) so also it cannot stand in (b). That section 2
of Cap. 72 was mandatory despite the Fundamental Rights and Freedoms
(Enforcement Procedure) Rules.

Learned Counsel maintained that he would concede the point if the

Constitutional Court had declared section 2 of Cap. 72 (ante) unconstitutional
as taking out the suits under Article 50 of the
Constitution. But that Court had not done so. And the High Court had no
power to declare that this Act did not apply to Article 50 suits.
Such a declaration by the High Court would have no effect of declaring the Act
unconstitutional.

It is pertinent that I reproduce the provisions of Article 50 (1) 0f (4) the

Constitution.

"(1) Any person who claims that a fundamental or other right or freedom
guaranteed under this constitution has been infringed or threatened, is entitled
to apply to a competent Court for redress may include which compensation.”
(2)………………………………..
(3)……………………………….

(4). Parliament shall make laws for the enforcement of rights and freedoms
under this Chapter.

I will also reproduce the provisions of the Fundamental Rights and Freedoms
(Enforcement Procedure Rules (5.1. 26 of 1992,

This is one of the laws envisaged in Article 50 (4) above. Rule 7 reads

"7. Subject to the provisions of these Rules, the Civil Procedure Act and the
rules made thereunder shall apply in relation to the application.”

[Emphasis is mine.]

In THE ENVIRONMENTAL NETWORK LTD. -VS- THE ATTORNEY GENERAL

AND NEMA: HC MISC. APPL. NO 13/2001 J.H. Ntabgoba, PJ. considered a
similar preliminary objection as the present one. He stated

“--------Although Rule 4 provides that no motion under Rule 3 shall be made

without notice to the Attorney General and any other party affected by the
application, Rule 7 clearly stipulates that ----.
Applying the so-called golden rule of interpretation, we assumed that besides
Rule 7 of S.1. 26 of 1992, Parliament meant that any other rule of procedure
should be applied. It is for this reason that I think that applications pursuant
to Article 50 of the Constitution must be strictly restricted to the Civil
Procedure Act and the rules thereunder and not under section 1 of Act No. 20
of 1996 (read Cap. 72, S.2)………….

I agree with this requirement that the Respondent usually the Government or a
scheduled corporation needs sufficient period of time to investigate a case
intended to be brought against it so as to be able to avoid unnecessary expense
on protracted litigation. This rationale cannot apply to a matter where the
rights and freedoms of the people are being or are about to be infringed. The
people cannot afford to wait forty-five days before pre-emptive action is applied
by Court. They need

immediate redress. They need a short period which is one provided under the
ordinary rules of procedure provided by the Civil Procedure Act and its Rules.
To demand from an aggrieved party a forty-five days` notice is to condemn
them to infringement of their rights and freedoms for that period which this
Court would not be prepared to do…………`

[Emphasis supplied.]

I have no better words to use than these in order to overrule the preliminary
objection before me. It is accordingly overruled..

Dr. Byamugisha for 1st Respondent.