Uganda Legal Information Institute - Lease https://old.ulii.org/tags/lease-0 en Ojede v Lutalo (CIVIL APPEAL No. 126 OF 2012) [2019] UGCA 123 (6 May 2019); https://old.ulii.org/ug/judgment/court-appeal-uganda/2019/123 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/land" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land</a></li><li class="field-item odd"><a href="/tags/lease-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lease</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-8943b60aa02e27d8e992f8e8e41530c2"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/123/court-appeal-uganda-2019-123.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fcourt-appeal-uganda%2F2019%2F123%2Fcourt-appeal-uganda-2019-123.pdf" data-src="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/123/court-appeal-uganda-2019-123.pdf">https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/123/court-appeal-uganda-2019-123.pdf</iframe> </div> </div> </div> </div> </div> Wed, 29 May 2019 08:11:02 +0000 Ben Mulingoki 29840 at https://old.ulii.org Bank of Uganda v Maluku Inter Globle Trade (CIVIL SUIT No. 950 OF 1988) [1989] UGHCCD 1 (23 February 1989); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/1989/1 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/land" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land</a></li><li class="field-item odd"><a href="/tags/lease-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lease</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-a9fbf1046b2e28fa2c320849c3821287"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division-uganda/1989/1/hc-civil-division-uganda-1989-1.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fhc-civil-division-uganda%2F1989%2F1%2Fhc-civil-division-uganda-1989-1.pdf" data-src="https://old.ulii.org/system/files/judgment/hc-civil-division-uganda/1989/1/hc-civil-division-uganda-1989-1.pdf">https://old.ulii.org/system/files/judgment/hc-civil-division-uganda/1989/1/hc-civil-division-uganda-1989-1.pdf</iframe> </div> </div> </div> </div> </div> Thu, 23 Aug 2018 06:38:34 +0000 Ben Mulingoki 28975 at https://old.ulii.org Kampala City Council & Anor Vs Bwogi & Sons Enterprises Ltd (CIVIL APPEAL NO. 52 OF 2009) [2017] UGCA 22 (1 August 2017); https://old.ulii.org/ug/judgment/court-appeal-uganda/2017/22 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></li><li class="field-item odd"><a href="/tags/burden-proof" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Burden of Proof</a></li><li class="field-item even"><a href="/tags/possession-property" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Possession of Property</a></li><li class="field-item odd"><a href="/tags/fraud-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Fraud</a></li><li class="field-item even"><a href="/tags/breach-contract-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Breach of Contract</a></li><li class="field-item odd"><a href="/tags/lease-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lease</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-e49e1ee2b3d61893108681baa2c6bb9d"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2017/22/court-appeal-uganda-2017-22.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fcourt-appeal-uganda%2F2017%2F22%2Fcourt-appeal-uganda-2017-22.pdf" data-src="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2017/22/court-appeal-uganda-2017-22.pdf">https://old.ulii.org/system/files/judgment/court-appeal-uganda/2017/22/court-appeal-uganda-2017-22.pdf</iframe> </div> </div> </div> </div> </div> Tue, 26 Sep 2017 12:44:53 +0000 Ben Mulingoki 27818 at https://old.ulii.org Victoria Best Limited v Uganda Investments Authority & Anor (CIVIL APPEAL NO. 110 OF 2014) [2017] UGCA 8 (28 April 2017); https://old.ulii.org/ug/judgment/court-appeal/2017/8 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/lease-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lease</a></li><li class="field-item odd"><a href="/tags/title-property" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Title to Property</a></li><li class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"></div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-71a959ac29a09f3ad8e6f639683829f8"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal/2017/8/court-appeal-2017-8.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 15 May 2017 09:54:10 +0000 Eunice Logose 27374 at https://old.ulii.org Sewanyana v Aliker (CIVIL APPEAL NO.4 OF 1990) [1991] UGSC 8 (27 February 1991); https://old.ulii.org/ug/judgment/supreme-court/1991/8 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Property Law</a></li><li class="field-item odd"><a href="/tags/land" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land</a></li><li class="field-item even"><a href="/tags/leases-and-tenants" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Leases and tenants</a></li><li class="field-item odd"><a href="/tags/lease-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lease</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong><u>IN THE SUPREME COURT OF UGANDA</u></strong></p> <p>&nbsp;</p> <p><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <u>AT MENGO</u></strong></p> <p>&nbsp;</p> <p>(CORAM: MANYINDO D.C.J., ODER J.S.C. , &amp;&nbsp; PLATT J.S.C )</p> <p>&nbsp;</p> <p><u>CIVIL APPEAL NO.4 OF 1990</u></p> <p>&nbsp;</p> <p>BETWEEN</p> <p>LIVINGSTONE SEWANYANA…....…… …………………………………….APPELLANT</p> <p>AND</p> <p>MARTIN ALIKER …..…………………………………………………………..RESPONDENT</p> <p>(Appeal from the Judgment and orders of the High Court of Uganda at Kampala(Byamugisha Ag.J.) dated 11/8/1989)</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>CIVIL SUIT NO.1015 OF 1987</u></strong></p> <p>&nbsp;</p> <p><strong><u>JUDGEMENT OF ODER ,J.S.C.</u></strong></p> <p>&nbsp;</p> <p>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.</p> <p>&nbsp;</p> <p>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).</p> <p>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.</p> <p>&nbsp;</p> <p>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.</p> <p>&nbsp;</p> <p>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.</p> <p>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.</p> <p>&nbsp;</p> <p>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&nbsp; for the respondent at the trial of the suit , Maria Gorrette Karuhanga Mangiga,&nbsp; a senior Registrar of Titles (DW1) the commission acted on the application&nbsp; for renewal of the respondent’s lease of the suit property and a new certificate of title (exhibit P.7)&nbsp; 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&nbsp; 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.</p> <p>&nbsp;</p> <p>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.</p> <p>&nbsp;</p> <p>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:-</p> <p>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.</p> <p>&nbsp;</p> <p>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.</p> <p>4. ………………………………………………</p> <p>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.</p> <p>6. That the learned trial Judge erred in law and fact in that she held that the Land&nbsp; 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”.</p> <p>Mr.Zabwe argued ground five first, attacking the following finding of the learned trial Judge:-</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “There is sufficient evidence on record which has not been</p> <p>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……….</p> <p>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.”</p> <p>&nbsp;</p> <p>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&nbsp; I have referred to , the part of exh .p3 on which the learned counsel relied for this argument reads as follows:-</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>&nbsp;“You were given a lease by the Uganda Land Commission in 1983&nbsp;&nbsp; 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.”</p> <p>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.</p> <p>&nbsp;</p> <p>With respect I find no merit in Mr. Zabwe’s &nbsp;&nbsp;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.</p> <p>&nbsp;</p> <p>Secondly with regard to whether the appellant’s lease was granted in 1983 , the evidence of Maria&nbsp; (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 :-</p> <p>&nbsp;</p> <p>“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.”</p> <p>&nbsp;</p> <p>This evidence was neither challenged nor controverted.</p> <p>&nbsp;</p> <p>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&nbsp; 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 15<sup>th</sup> 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<sup>th</sup> August” on exhibit D1 it is actually not so. That disposes of ground five of the appeal.</p> <p>&nbsp;</p> <p>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&nbsp; 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.</p> <p>&nbsp;</p> <p>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.</p> <p>&nbsp;</p> <p>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.</p> <p>That is also what the secretary apparently intended to communicate to the appellant by his&nbsp; 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.</p> <p>&nbsp;</p> <p>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: <strong>The Departed</strong> <strong>Asians property Custodian Board Vs. Benjamin Anyadra,</strong> 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 &nbsp;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:-</p> <p>&nbsp;</p> <p>“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.</p> <p>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.</p> <p>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.”</p> <p>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.</p> <p>&nbsp;</p> <p>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:-</p> <p>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.</p> <p>&nbsp;</p> <p>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&nbsp; 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 &nbsp;details.” In its report the Committee stated that “the land applied for is&nbsp; 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:-</p> <p>In contrast to this the appellant said this in his evidence:-</p> <p>“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</p> <p>&nbsp;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.”</p> <p>The evidence of Maria (DW1) after the passage I have already referred to when considering ground two continues as follows:-</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>“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.”</p> <p>&nbsp;</p> <p>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.</p> <p>&nbsp;</p> <p>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.</p> <p>&nbsp;</p> <p>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.</p> <p>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.</p> <p>&nbsp;</p> <p>Dated at mengo this 27<sup>th</sup> day of February, 1991.</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; SIGNED:</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A.H. O .ODER</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <u>JUSTICE OF THE SUPREME COURT</u></p> <p>&nbsp;</p> <p>I&nbsp; CERTIFY THAT THIS IS A</p> <p>TRUE COPY OF THE ORIGINAL</p> <p>&nbsp;</p> <p>………………………………………………………………..</p> <p>B.F.B. BABIGUMIRA</p> <p><strong>REGISTRAR SUPREME COURT</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-93473ef4ef03fb0f31a15b2ffa7b0a8e"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/1991/8/supreme-court-1991-8.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Wed, 02 Dec 2015 12:52:43 +0000 Anonymous 25644 at https://old.ulii.org Kanyara v Hassan Ali Amhed (CIVIL APPEAL NO.1 OF 1990) [1991] UGSC 6 (27 February 1991); https://old.ulii.org/ug/judgment/supreme-court/1991/6-2 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/contract-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contract Law</a></li><li class="field-item odd"><a href="/tags/parties-contract" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Parties to contract</a></li><li class="field-item even"><a href="/tags/privity-contract" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Privity of Contract</a></li><li class="field-item odd"><a href="/tags/property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Property Law</a></li><li class="field-item even"><a href="/tags/land" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land</a></li><li class="field-item odd"><a href="/tags/leases-and-tenants" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Leases and tenants</a></li><li class="field-item even"><a href="/tags/lease-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lease</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong><u>IN THE SUPREME COURT OF UGANDA</u></strong></p> <p><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <u>&nbsp;AT MENGO</u></strong></p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; CORAM: MANYINDO, D.C.J., AND PLATT. J.S.C &amp; SEATON, J.S.C</p> <p><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <u>CIVIL APPEAL NO.1 OF 1990</u></strong></p> <p><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;BETWEEN</strong></p> <p><strong>RONALD DONATO KANYARA ………………………………… APPELLANT</strong></p> <p><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; AND</strong></p> <p><strong>HASSAN ALI AHMED ……………………………………………… RESPONDENT</strong></p> <p><strong>(Appeal from the decision and judgement of Highcourt of </strong></p> <p><strong>Uganda&nbsp; at Kampala (Mr.Justice Karokora) dated 12/7/1989)</strong></p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN</p> <p>H.C.C.S. NO. 396 OF 1987</p> <p><strong><u>JUDGEMENT OF PLATT, J.S.C</u></strong></p> <p>Having had the benefit of studying the judgment and proposed orders of seaten J.S.C with great regret I cannot agree. will therefore indicate my dissent shortly.</p> <p>The facts have been fully set out by seaten J.S.C.</p> <p>It appears that some equitable consideration is said to arise, so that the Town Council of Tororo in granting the license to the Defendant, and later a lease, must take care to fix terms or conditions to protect the previous “tenant” or licensee; so that the new licensee may be bound to pay compensation for semi-permanent buildings. It is then said that the Defendant should pay compensation by computing areas of rent .This stems it seems from the duty of the&nbsp; council to protect the constitutional right of all citizens. Authority is also found in <strong>CRABB Vs ARUN D.C.(1975</strong>) 3 All&nbsp; E.R. 865 and <strong>CHANDLER Vs KERLEY</strong> <strong>(1978) </strong>2 ALL E.R. 942 and the proposition favoured is :-</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “If, however, the legal relationship between the parties is such</p> <p>&nbsp;that the true arrangement envisaged by the parties will be frustrated</p> <p>by the parties or left to their legal rights and duties at law , an equity</p> <p>will arise which the courts can satisfy by appropriate equitable relief.”</p> <p>The relationship between the plaintiff and the Town council was that the Town council was the controlling authority with full power to grant estates and create rights or interests and to dispose of or otherwise deal with the estate or interest in a plot. Hence if it has granted a license or a lease having fulfilled its statutory duties, it is <u>not</u> bound to protect the constitutional rights of all citizens. Its duty to manage the estate of the Town Council in conformity with sound principles of management for the benefit of the people within the jurisdiction of Tororo Town Council; and its decisions are not to be questioned, unless they are ultra vires the powers, procedures and usages of the council. The latter’s duty is to see that the rights acquired by the people of Tororo are preserved within the relationship established between the people and the Council. Thus if Council has a policy of granting a temporary license. Thus if the Council has a policy of granting a temporary license of a plot to &nbsp;a person of Tororo , that policy is not objectionable per se .If it has the need to encourage local businessmen on easy terms , it may not insist on giving them leases.</p> <p>However, if the license contains certain conditions, and the conditions are broken, then the Council may revoke the license and reallocate the plot. In these circumstances it is well understood that the temporary license should not develop the land with buildings that may attach to the land and become the Council’s property. If development is aimed at, then a lease should be sought. That will have conditions requiring the development to be of the required standard. Development of a lower level may well not be in the interest of Town planning. Consequently if haphazard development is made which is not sanctioned by the council, or acquiesced in by the Council, or where the council has not misled the licensee in any way, the council may revoke the license if the conditions are not fulfilled. The principles of <strong>RUNDA COFFE ESTATES Vs U. SINGH</strong> (<strong>1966) E.A. 564</strong> apply.</p> <p>It appears that two sets of relationships may arise when uncontrolled development of licensed property has taken place. The first relationship lies between the licensee and the Council. The second relationship is a private matter between the licensee giving up the license and the new licensee. There is no connection between the agreement of the old licensee and the Council as to terms which may or may not be agreed between the old and new licensee. The council may never know whether any such relationship ever arose between the old and new licensee. The Council may never know whether any such relationship ever arose between the old and new licensee. The council may even decide that the uncontrolled development is harmful to that neighborhood and have it demolished. It has no duty to see that the new licensee should pay compensation for the development which the new licensee may not want and may wish to destroy. Even if the new licensee should use some pact of the development that the development now belonging to council may attract greater land rent. But it would not normally be a matter about which the council would compensate the old licensee. Yet that is where the matter lies. When the old licensee returns the land temporarily occupied by him to the council, it is to the council that the licensee should look for compensation, if any basis for that compensation arise, for improvement for the council’s land. What the old licensee can get out of the new licensee is a matter for the licensees themselves. Hence, if the old and new licensee agree on compensation, and the old licensee vacates the land, and then the new licensee is granted a temporary license of the land, after which he fails to pay the old licensee, the latter cannot appeal to the council to revoke the temporary license, nor can the old licensee direct the council to add a term to the the new allocation to pay compensation to him. What has the council to do with this compensation? What constitutional rights has the old licensee got, after he has relinquished the land? He has merely his contractual rights if any against the new licensee. The old licensee has in truth used the land as he pleased, and once the license has come to an end, that is the end of his interests in the development of the land. Even if there is a lease, compensation for improvement must be agreed upon. A licensee or lessee cannot force what he calls improvements on the owner of the land. The constitutional right which the licensee or lessee has, is determined by the contract of license or lease, unless the council has taken some step to cause itself to be liable for compensation for improvements.&nbsp; Unless these principles are clearly adhered to council may be embroiled in suits which are none of their making, and they may be required to enquire into personal situations to ascertain whether any constitutional rights arise. This may prove harmful to other tax payers in the council’s area. Moreover it is a moot point whether if the council did impose a condition of payment of compensation to an old licensee, it would be acting properly within its powers. Why should the new licensee be saddled with payment for so-called improvements not authorized or encouraged by the council? Would the council not be moving out of its jurisdiction with realms outside its proper functions? .And worst of all, as the council has not been made a party to this suit, how has the council been ordered to add a condition to its allocation of the license respectively. It has been, indeed, long since spent, because a lease was granted to the defendant who had been the new licensee, and the lease has ended, and gone with it are the supposed powers of the council to force compensation to be paid.</p> <p>All these suppositions made, as to the relationship of the parties, causing council to be responsible, depend on what the licensees have said in their understanding of the council’s position. This council has not been heard? Perhaps the council has some constitutional rights as well, of which the court has not heard. Suppose, for instance, that the reason why during 20 years from 1959 to 1974 the plaintiff took new lease was because the council had discouraged him from “improving” the plot as undesirable from a town planning point view; and suppose it was said that the building on the this plot will have to be demolished, and the plot leased for better building, is the council responsible to insert a condition of paying compensation on the law licensee? Did that apply even when the plaintiff was not in Tororo? This person took refuge in Kenya for many years thus defaulting on his obligation. Is the council responsible to find out when the plaintiff refugee went, and wait for him to return, despite nonpayment of ground rent and the wrongful contradiction of “tenants? How far is this principle to go?</p> <p>It is my view that this matter is an example of the adage, that herd cases make bad law. This is a herd case. But the plaintiff’s choice of escaping from Uganda without making provision for his absence left him vulnerable. The council might not have reallocated his plot. But it did. The plaintiff did not challenge its power to do so. The council might not have leased the plot to the defendant. But it did. Apparently the plaintiff did not challenge the exercise of the council’s discretion. The plaintiff had no contractual relationship with the Defendant after the license was terminated. I would have been prepared to hold that the plaintiff made out no case at all for any the reliefs he claimed, and that this suit should be dismissed with costs against him here and below. But if his suit is to be admitted at all, to ascertain whether any equity arose, then the judgment and decree of the high court should be set aside, and the record remitted to the high court for re-trial, the council being added as a necessary party to the suit; by the court itself if necessary. I would propose that there be no order as to the costs of this appeal, and that the costs in the court below abide the event of the retrial. I would be happy to abide by this compromise.</p> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Delivered at mengo this 27<sup>th </sup>day of February 1991.</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; H.G. PLATT</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; JUSTICE OF THE SUPREME COURT</strong></p> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-5227c166cb6e74d630a52b5bb96a039d"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Sat, 12 Sep 2015 16:55:26 +0000 Anonymous 25267 at https://old.ulii.org Sam Rukuba V The Registrar of Titles (Misc. Application No.3/91) ((Misc. Application No.3/91)) [1992] UGHC 6 (30 January 1992); https://old.ulii.org/ug/judgment/high-court/1992/6 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Property Law</a></li><li class="field-item odd"><a href="/tags/land" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land</a></li><li class="field-item even"><a href="/tags/leases-and-tenants" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Leases and tenants</a></li><li class="field-item odd"><a href="/tags/lease-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lease</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong><u>T</u></strong><strong><u>HE REPUBLIC OF UGANDA</u></strong><br /> <strong><u>IN THE H</u></strong><strong><u>IGH COURT OF UGANDA AT KAMPALA<br /> &nbsp;MISC. APPLICATION NO.</u></strong><strong><u>3/91</u></strong></p> <p><strong>SAM RUKUB</strong><strong>A…………………………………………………………APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>THE REGISTRAR </strong><strong>OF TITLES…………………………………….RESPONDENT</strong><br /> <strong>BEFORE: </strong><strong><u>THE </u></strong><strong><u>HON</u></strong><strong><u>OTJRABLE</u></strong><strong><u> MR. JUSTICE G.M. OLLO</u></strong><br /> <strong><u>RULING: </u></strong></p> <div>This application was brought by Notice of Motion under section 190 of the RTA and O. 48 r. 1 of the CPR. In it the applicant, a registered proprietor of apiece of land comprised in a Freehold Register Volume 141 Folio 2 Block 82 plot 2 at Mwenge in Kabarole District, sought an order (a) that the Chief Registrar of Titles furnishes grounds or substantiates the grounds for refusing the applicant’s application to have his re-entry on his said land noted in. the Register,<br /> (b) that the chief Registrar of Titles notes the said re-entry on the Register without further delay and<br /> (c) that cost of this application be provided for.<br /> The application is grounded on the fact that the applicant who is the registered proprietor of the said land comprised in Freehold Register Volume 141 Folio 2 Block 82 plot 2 at Mwenge had in 1988 re-entered upon a Lease to one Deryck Vanghan Broad head William and took physical possession of the land. That this land was by operation of the law brought under the Management of the DAPCB, that when the applicant applied to the Chief Registrar of Titles to note the said Re-entry in the Register, the later refused and subscribed no reasons for the refusal.<br /> The application was supported by an affidavit which was sworn on 20/12/90 by Sam Rukuba.<br /> At the commencement of the hearing of the application, counsel for the applicant appeared but the Chief Registrar of Titles did not appear. He was otherwise duly served and there is on the file evidence of service to that effect. Instead he sent a non advocate<em> </em>as a representative with instruction to apply for adjournment of the case. The reason given for his non- appearance and for the adjournment sought was that the Chief registrar of Titles was engaged with representatives of the World Bank and therefore could not attend court. After hearing counsel for the applicant, I refused to entertain the request for adjournment firstly because the so-called representative was<em> </em>not an authorised person to represent the Chief Registrar. He was not an advocate. I was not informed that he was a Registrar. Secondly no sufficient ground to justify the grant of adjournment was given. I therefore ordered that the hearing of the Application proceeds exparte as requested by counsel for the applicant.</div> <div>In her address to me, Counsel for the applicant expressed fear that if the re-entry of the applicant the lease made to one Deryck V.B.<strong> </strong>Williams as not noted in the Register of Freehold, there was a danger, of the land being sold out by the DAPCB. There is an affidavit in support of this application. This affidavit is not challenged. . The Chief Registrar of Titles did not file in any affidavit in reply to the supporting affidavit. Counsel declined to secure the attendance of the CR. of Titles to court to substantiate his refusal.<br /> Section 190 of the R.T.A empowers this court at the instance of<em> </em>an aggrieved proprietor, upon hearing the parties to make appropriate orders regarding the Chief Registrar of Titles conduct complained of.<br /> Now having heard counsel for the applicant upon this application and after perusing the supporting affidavit and the Notice of motion, I allow the application. It is therefore ordered that the Registrar of titles notes the Re-entry of the applicant on the said lease as prayed. The defendant is to pay cost of this application.</div> <div>&nbsp;</div> <div>&nbsp;</div> <div><strong>G.M. </strong><strong>OKELLO<br /> JUDGE</strong><br /> <strong>30/1/92.</strong><br /> &nbsp;</div> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-5ebec5b5b84af721c1a1bfa3f2b82c7b"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1992/6/high-court-1992-6.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:53:59 +0000 Anonymous 16620 at https://old.ulii.org Kuwe v Vader (Civil Appeal No. 2 of 2002) ((Civil Appeal No. 2 of 2002)) [2002] UGSC 7 (18 September 2002); https://old.ulii.org/ug/judgment/supreme-court/2002/7 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Property Law</a></li><li class="field-item odd"><a href="/tags/land" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land</a></li><li class="field-item even"><a href="/tags/leases-and-tenants" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Leases and tenants</a></li><li class="field-item odd"><a href="/tags/lease-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lease</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong><em>THE REPUBLIC OF UGANDA</em></strong><br /> <strong><em>IN THE SUPREME COURT OF UGANDA </em></strong><br /> <strong><em>AT MENGO</em></strong></p> <p>&nbsp;</p> <p><strong><em>(CORAM: ODOKI-CJ, ODER, TSEKOOKO, MULENGA AND</em></strong><em> <strong>KANYEIHAMBA - JJ.S.C.)</strong></em></p> <p><strong><em>CIVIL APPEAL NO. 2 OF 2002 </em></strong><br /> <strong><em>BETWEEN</em></strong></p> <p><strong><em>ERUKANA KUWE: APPELLANT</em></strong><br /> <strong><em>AND</em></strong><br /> <strong><em>VASRAMBHAI DAMJI VADER:</em></strong><em> <strong>RESPONDENT</strong></em></p> <p>&nbsp;</p> <p><em>(Appeal from the decision of the Court of Appeal at Kampala (Mpagi-Bahigeine, Engwau and Kitumba, JJ.A.) dated 21-09-2001, in Civil Appeal No. 42 of 2000).</em></p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF ODER JSC.</u></strong></p> <p>This appeal is against the decision of the Court of Appeal which upheld the judgment of the High Court dismissing the appellant's suit and granting the respondent relief against forfeiture.</p> <p>The facts of the case, briefly, are these:</p> <p><em>The appellant was the registered owner of land comprised in Block No. 29, Plot No. 123, Mulago, in Kampala (referred to hereinafter as "the suit property").</em></p> <p>By an agreement dated 15-02-68, the appellant leased the suit property to the respondent for a period of 49 years. The property was undeveloped at the time. Thereafter the respondent, built a residential house on it.</p> <p>The lease agreement contained covenants binding on the respondent. Relevant to this appeal are the following clauses:</p> <blockquote><br /> <br /> <strong>"2. <em>The yearly rent for the land hereby demised shall be Shs. 600= (Shillings six hundred) and shall be paid every year in arrears </em></strong></blockquote> <p>&nbsp;</p> <p><strong>4. <em>The lessee hereby covenants with the lessor as follows:-</em></strong></p> <p>&nbsp;</p> <p><em>(a) </em></p> <p>&nbsp;</p> <p><strong><em>(b)</em></strong><em> <strong>To pay the rent reserved at the appointed time and all existing and future rates, taxes, assessments and outgoings payable by law in respect of the land agreed to be leased.</strong></em></p> <p>&nbsp;</p> <p><strong><em>(c) </em></strong></p> <blockquote> <table> <tbody> <tr> <td><strong><em>(d)</em></strong></td> <td><strong><em>To keep the land agreed to</em> <em>be leased and any building erected thereon in good and tenantable repair and in clean and tidy condition.</em></strong></td> </tr> <tr> <td><strong><em>(e)</em></strong></td> <td><strong><em>Not to assign, sublet, or part with the possession of the whole or any part of the land without the consent in writing of the lessor such consent not to be unreasonably withheld in the case of a respectable and responsible tenant or tenants.</em></strong></td> </tr> </tbody> </table> </blockquote> <p><strong><em>5. The lessor hereby covenants with the lessee as follows:-</em></strong></p> <p>&nbsp;</p> <p><strong><em>(a) </em></strong></p> <p><strong><em>(b) PROVIDED ALWAYS and this lease is made upon this express condition that if the rent or part thereof is in arrear for the space of thirty days, although no legal or formal demand has been made for payment thereof, or in case of any breach or non-observance, of any of the covenants expressed herein and such breach or non-observance continue for the space of thirty days, it shall be lawful for the lessor or his transferees to re-enter upon and take profession of the demised property."</em></strong></p> <p>The respondent, an Asian, was expelled from Uganda in 1972. Consequently, the suit property vested in the Departed Asian Property Custodian Board under the Assets of Departed 'Asians Decree, 1973. On 15-09-93, the respondent repossessed the property under the Expropriated Properties Act, 1982, through a property agent called Anglo African Ltd. Through the same agent, the respondent entered into a one -year tenancy agreement with one Mamtaz Hassan (PW2) as a tenant on 20-03-95, at a monthly rent <em>of </em>Shs. 200,000-.</p> <p>Thereafter, Mamtaz occupied the suit property. On 25-05-95, the appellant gave the tenant one month's notice to vacate it. The tenant, who had apparently spent some money to renovate the suit property with the consent of the respondent's agent, complained. The appellant had by then declared himself the rightful owner of the suit property. He offered Mamtaz a tenancy to rent it from him (the appellant). A tenancy agreement was made between them on 27-09-95.<br /> <br /> <br /> On 29-09-95, the appellant applied to the Commissioner of Land Registration to note the appellant's re-entry in the register. However, the Commissioner refused to do so, for the reason, as he put it in a letter to the former (Annexture 'C' to the amended written statement of defence) that:</p> <p>&nbsp;</p> <p><strong><em>"Upon re-examination of the application I have found nothing on Oath to prove that the lessor has physically entered the premises or otherwise got possession thereof."</em></strong></p> <p>Thereupon, the appellant instituted a suit against the respondent, praying for, inter alia, a declaration that he had lawfully re-entered and terminated the respondent's lease of the suit property; a permanent injunction to restrain the respondent from evicting the appellant's tenant; and an order for the Registrar of Titles to note the appellant's re-entry in the register.<br /> <br /> The respondent defended the suit. In his amended written statement of defence, he admitted the lease agreement with the appellant, but denied the appellant's claims. He averred, inter alia, that between 1972 and 1993, he was not supposed to pay ground rent when the suit property was in the hands of the Departed Asians Property Custodian Board,; and that after the suit property was repossessed on his (the respondent's) behalf by M/s. Anglo African Ltd., the company wrote letters to the appellant for him to inform the company where to pay the ground rent, but no response was received from the appellant. The respondent made a counter-claim in his amended written statement of defence to the effect that if it was proved that he had acted in breach of the covenants in the lease agreement, then he was prepared to pay up all outstanding rent, and any costs so far incurred by the appellant. The respondent claimed for relief against forfeiture under s.27 of the Judicature Statute 1996 J.S. The respondent then prayed for judgment in his favour relieving him from forfeiture and for an order allowing him to have possession of the suit property.<br /> <br /> <br /> At the end of the trial of the suit, the learned trial judge found that the respondent had been in breach of the lease agreement by failure to pay the annual rent; and by sub-letting without the written consent of the respondent. The learned trial judge also found that there had been a breach of the covenant to keep the suit property in good and tenantable condition. She held, however, that since the property had been in the hands of persons not privy to the lease agreement, the respondent was not responsible for that breach. The breaches found to have occurred notwithstanding, the learned trial judge dismissed the appellant's suit. She granted the respondent a relief against forfeiture. The appellant appealed to the Court of Appeal, which dismissed his appeal upholding the High Court decision. Hence, this appeal.<br /> <br /> <br /> Three grounds were set out in the memorandum of this appeal, namely that:</p> <blockquote> <table> <tbody> <tr> <td>1.</td> <td><em>The learned Justices of Appeal erred in law in holding that the trial judge had discretion to grant relief from forfeiture to the respondent after finding that the respondent had breached lease covenants other than non payment of rent.</em></td> </tr> <tr> <td>2.</td> <td><em>In the alternative, the learned Justices of Appeal erred in law and in fact when they failed to evaluate and assess the evidence as a first appellate court should have done and erred when they therefore held that the trial judge properly exercised her discretion in granting relief against forfeiture to the respondent.</em></td> </tr> <tr> <td>3.</td> <td><em>The learned Justices of Appeal erred in law in holding that s.184 of the Registration of Titles Act (Cap. 205) was not applicable to the matter before court.</em></td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>Mr. Denis Wamala, the appellant's learned Counsel first took the third ground and subsequently argued the first and second ground together. I shall deal with them in the same order.</p> <p>In his submission under the third ground of appeal, the learned Counsel contended that the provisions of s.184 of the Registration of Titles Act {RTA} applied to this case because: <em>the appellant was the registered proprietor of the suit property as evidenced by the lease between him and the respondent; because the appellant was in constructive possession of the suit property at the material time; because the respondent sued the appellant by way of a counter claim, praying for possession thereof, thereby, in effect, conceding that he (the respondent) did not have possession; and because the trial court found that the appellant did re-enter the suit property although the Registrar of Titles refused to perfect the re-entry by noting it in the register. </em>The learned Counsel, contended that the respondent's counter - claim was an action for ejectment which was resisted by the appellant by his reply thereto.</p> <p>For the reasons aforesaid, the learned Counsel contended, the Court of Appeal erred to have found that s.184 of the RTA did not apply to the instant case. He relied on the case of <strong><em>Francis Butagira -vs- Deborah Namukasa, Civil Appeal No. 6/89 (SCU) </em></strong>(unreported), and criticized the Court of Appeal for distinguishing it from the instant case.<br /> <br /> <br /> He further submitted that the lease between the appellant and the respondent was terminated the moment the appellant re-entered, and that the lawful re-entry, learned Counsel contended, was not nullified by the Registrar's refusal to note it in the register. The learned Counsel relied on the case of <strong><em>The Executrix of the Estate of the Late Christine Mary Namatovu Tebajjukira and Another -vs- Noel Grace Shalita Stanzi, Civil Appeal No. 2/88 (SCU) </em></strong>(unreported).<br /> <br /> <br /> Mr. Augustine Kibuka Musoke argued the respondent's case in opposition to the appeal. His submission under the third ground of appeal was brief. He referred to s.184 of the RTA and contended that the respondent's counterclaim was not a suit against the appellant. The section therefore, did not apply to the instant case.</p> <p>In so far as it is relevant, Section 184, RTA provides as follows:</p> <blockquote><br /> <br /> <strong><em>No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as a proprietor under the provisions of this Act, except in any of the following cases. -</em></strong></blockquote> <p>&nbsp;</p> <p><strong><em>(a) </em></strong></p> <p><strong><em>(b) the case of a lessor as against a lessee in default;</em></strong></p> <blockquote>........................................................................................<br /> <strong><em>and in any case other than as afore said 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 not with-standing".</em></strong></blockquote> <p>&nbsp;</p> <p>The application of section 184 of the RTA has been considered by this court in the recent past in the cases of - <strong><em>The Executrix of the Estate of the Late Christine Mary Namatovu Tebajjukira and Another -vs- N. G. Shalita Stananzi </em></strong>(supra); and <strong><em>Francis Butagira -vs- Deborah Namukasa </em></strong>(supra).<br /> &nbsp;</p> <p>The facts in the former case were briefly as follows:</p> <p><em>The second appellant Deborah Namukasa was the administratrix of the estate of her late grandmother, Christine Mary Namatovu Tibajjukira. It was in that capacity that she was sued as the first defendant. The respondent was the registered propriety of the suit property which was comprised in L.H Vol. No. 380 Folio 4. The freehold interest comprised in F.H.R. Vol. 30 Folio 18, was registered in the names of the deceased until 10-03-86, when it was transferred to the second appellant as the Administratrix of the deceased's estate and as proprietor in succession. Soon after obtaining title the second appellant re-entered the respondent's leasehold and took physical possession of one of the houses therein. It was then that the respondent sued for trespass. His case was that as his lease was still subsisting, he was entitled under the covenants of that lease to quiet enjoyment of the property. The second appellant's defence was that she had a right of re-entry as she had a freehold interest in the land. The trial court gave judgment for the respondent, ordering that the second appellant should give vacant possession, and pay mense profit and damages to the respondent.</em><br /> <br /> <br /> The appellant's appeal to this court in that case was allowed' mainly, on the ground that in view of the provisions of Section 184, a lessee has no right to bring action for ejectment or recovery of land against the lessor since under those provisions only the lessor is permitted to sue the lessee who has defaulted in complying with the terms of the lease. Wambuzi, CJ, said:</p> <blockquote><br /> <strong>"It <em>seems to me that paragraph (b) of the section simply means that a lessor may bring an action of ejectment or recovery of land against a lessee who is in default notwithstanding that the lessee is registered as proprietor of the lease. There is no provision for the converse. In other words there is not provision that in the case of a lessee as against a lessor in default, that is to say when it is the lessor who is in default and not the lessee. Accordingly, in my judgment, the case of a lessee purporting to bring an action in ejectment or recovery of land against his lessor falls under, "</em></strong><em>any case other than as aforesaid" <strong>in s.184 in respect of which the production of a registered certificate of title is an absolute bar and estoppel to any such action. The expression </strong>"any rule of law or equity to the contrary not-withstanding" <strong>must have been designed to rule out relief against forfeiture where the registered proprietor has re-entered."</strong></em></blockquote> <p>&nbsp;</p> <p>The interpretation of s.184 of the RTA made in that case, in my view, is still valid. What Wambuzi, CJ said in <strong><em>The Executrix of the Estate of the Late Christine Mary Namatovu Tebajjukira </em></strong>(supra) was cited with approval in <strong><em>Francis Butagira -vs- Deborah Namukasa </em></strong>(supra). In the latter case Odoki, J.S.C. (as he then was) said.</p> <blockquote><br /> <strong><em>"This court considered the above provisions in the </em></strong><em>Tebajjukira <strong>case (supra) and came to the conclusion that a lessee has no right to bring an action of ejectment against his lessor under those provisions. Wambuzi, CJ, had this to say on this point:</strong></em><br /> <strong><em>I concurred with that</em></strong></blockquote> <p><strong><em>decision and I am still of the same view. In the instant case, the appellant did bring an action for repossession of land which was being occupied by the respondent. It is clear, therefore, that the appellant was seeking ejection of his lessor or recovery of land from him which is not permitted by the provisions of section 184. The learned trial judge was therefore, in error in holding that these provisions were inapplicable to the present case."</em></strong><br /> &nbsp;</p> <p>In the instant case, the learned Justices of Appeal upheld the learned trial judge's finding that s.184 of the RTA did not apply.<br /> <br /> <br /> Kitumba, J.A., wrote the lead judgment, with which the other members of that court agreed. She said, inter alia:<br /> <br /> <br /> <em>"It is appreciated that under the provisions of section 184 of the Registration of Titles Act, a lessee has no right to bring an action of ejectment against his lessor. See <strong>Francis Butagira -vs-Deborah Namukasa </strong>(supra). The authority of <strong>The Executrix of the Estate of the Late Christine Mary Namatovu and Another -vs- Noel Grace Shalita Stananzi </strong>(supra) which Counsel for the appellant has relied upon is distinguishable from the instant appeal. In the present case the lease had not yet been voided and the appellant has not physically re-entered the land. The learned trial judge found that the appellant simply told Hassan, P.W.2, that he was the rightful owner of the premises and not the respondent. The appellant made a tenancy agreement with Hassan. This, in the judge's view, did not amount to physical re-entry. She held that the appellant just took advantage of the situation created by the respondent's agent.</em><br /> <br /> <br /> <em>In my view, the learned trial judge considered all the circumstances of the case and properly came to the right conclusion that section 184 of the Registration of Titles Act was not applicable. I am unable to fault her on this finding."</em><br /> <br /> <br /> With great respect, I am unable to agree with the conclusion of the learned Justice of Appeal in the passage of the judgment I have just reproduced.<br /> <br /> <br /> It is common ground that the respondent as lessee had been in breach of the lease agreement by failing to pay rent, by failing to keep the suit property in good and tenantable repair and clean condition, and by sub-letting it without the consent of the appellant. It was also not in dispute that the appellant as lessor was by reason of those breaches entitled to re-enter the suit property. The learned trial judge found in that regard as follows:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><em>"Was the lessor entitled to re-enter the demised premises? Under clause 5</em></strong><em>(b) <strong>of the lease agreement, and section 102 of the Registration of Titles Act the lessor had a right of re-entry upon the breaches being committed because if breaches occur the lease becomes voidable and not void at the option of the lesser."</strong></em></p> <p>&nbsp;</p> <p>The Court of Appeal did not expressly uphold that finding, but there can be no doubt that if it had considered it, it would have done so.</p> <p>In my view, the appellant determined the respondent's lease of the suit property by terminating the respondent's sub-leasing of the same to Mumtaz (PW2), as he did, and also by making a new sub-lease agreement with PW2. From the moment the appellant gave notice to end Mumtaz's occupation as the respondent's tenant, which notice Mumtaz apparently accepted, that, in my view, amounted to termination by the appellant of his lease of the suit property to the respondent.</p> <p>In my opinion, the consequences of what the appellant did in that regard were the same as if he had terminated the respondent's lease by sub-letting it to a complete stranger who had not been the respondent's tenant. Further, the appellant's action amounted to a lawful re-entry of the suit property. He did not take physical possession of the property, but I think that by putting his tenant in possession thereof, he thereby took constructive possession of the suit property. The respondent was thereby put out of possession of the suit property.</p> <p>As regards the Registrar's refusal to act on the appellant's application for his re-entry to be noted in the register the case of <strong><em>Lugogo Coffee Co. Ltd. -vs- Singo Combined Growers Ltd. (1976) H.C.B.92, </em></strong>appears to support the view that where the Registrar of Titles declines to note a re-entry and advises that the dispute be resolved by court action, the lease does not remain subsisting as between the lessee and the lessor. It is terminated notwithstanding a refusal by the Registrar of Titles to note the re-entry, as happened in the instant case. This is what Wambuzi, C.J. said in <strong><em>The Executrix of the Estate of the Late Christine Mary N. Tebajjukira </em></strong>(supra):</p> <p><strong>"In </strong><em><u>Lugogo Coffee Co. Ltd. -vs- Singo Combined Growers Ltd. (1976) H.C.B. 92,</u> <strong>the plaintiff company brought an action against the defendant company for possession and general damages for trespass. Before the action the land in question had been leased to the defendant. The vendor re-entered for non-payment of rent and applied to the Registrar of Titles to mark the re-entry in the register book on the ground of non-payment of rent. The Registrar declined to mark the re-entry and advised that the dispute be resolved by court action. The vendor did not refer the matter to court but instead sold the land to the plaintiff company. Nyamuchoncho J., as he then was, held inter alia, first that as between the lessor and the lessee the lease is determined by the lessor's lawful re-entry. I think this is a correct proposition in law.</strong></em></p> <p><strong><em>Secondly, the learned trial judge held that refusal by the Registrar of Titles to make an entry did not have the effect of keeping the lease subsisting. The lease was terminated by the lessor's re-entry for all intents and purposes as between the lessor and the lessee although the law had not recognized the re-entry. I think by this the learned Judge meant that the lessee could pass title of the leasehold to some third person who was unaware of the re-entry. I do not know whether this is or is not correct in law but quite clearly it is the duty of the court to say whether or not the re-entry was lawful and if so, issue proper orders to give effect to the re-entry such as rectification of the register. As I have already observed the main issue before the lower court was whether or not there was a lawful re-entry. Instead the court was preoccupied with determining whether the respondent was lawfully registered as proprietor of the lease held."</em></strong><br /> <br /> <br /> In my view, the principles expressed by Wambuzi C.J. in the passage of his judgment in <strong><em>The Executrix of the Estate of the Late Christine M. N. Tebajjukira </em></strong>(supra), to which I have just referred, apply to the instant case. The lease agreement between the appellant and the respondent was terminated by the appellant's re-entry for clear breaches of covenants by the respondent. It only remained for the High Court to order the</p> <p>&nbsp;</p> <p>Registrar of Titles to perfect the re-entry by noting in the register, a remedy which the appellant sought by his suit.</p> <p>Finally, in my view, the respondent, by his counter-claim in which he prayed for relief against forfeiture and possession of the suit property sought to eject the appellant from the suit property within the meaning of s.184 of RTA.</p> <p><strong><em>Black's Law Dictionary, 5<sup>th</sup> Edition, </em></strong>defines <strong><em>"counter claim" </em></strong>as a claim presented by a defendant in opposition to or deduction from the claim of the plaintiff. If established, it will defeat or diminish the plaintiffs claim.</p> <p>In the instant case the respondent's counter-claim was intended to defeat the appellant's suit reversing his re-entry of the suit property. As it happened the counter-claim succeeded in the trial court and was upheld (wrongly in my view) by the Court of Appeal. The appellant was thereby dispossessed of the suit property contrary, in my judgment, to the provisions of s.184 of the R.T. A.</p> <p>The third ground of appeal should therefore succeed. This disposes of the appeal but I shall, nevertheless, proceed to briefly consider the other two grounds, although the second is an alternative to the first.</p> <p>The appellant's learned Counsel next took the first and second grounds together. In his submission, learned Counsel criticized the Court of Appeal for upholding the trial judge's decision of granting to the respondent the remedy of relief against forfeiture on the basis of equity He contended that the trial court had no discretion to grant such a remedy to the respondent under sections 16(2)(c) and 35 of the Judicature Statute, 1996 for breaches other than non-payment of rent in view of the provisions of section 27 of the same Act.<br /> <br /> <br /> The Court of Appeal, therefore, erred to have upheld the learned trial judge's decision in that regard. Contrary to the Court of Appeal's decision, there are written laws to the effect that the respondent was only entitled to relief against forfeiture for non-payment of rent. He was not entitled to relief against forfeiture for breach of the other covenants.<br /> <br /> <br /> In the circumstances, learned counsel contended, sections 16(2)(c) and 35 of the J.S. were not applicable to the instant case. The learned counsel also relied on the case of <strong><em>Butagira, </em></strong>(supra) in support of his view that the trial court, whose decision the Court of Appeal upheld, should not have granted the respondent relief against forfeiture.</p> <p>The learned counsel's other reason why the Court of Appeal should not have upheld the granting by the trial court of the remedy of relief against forfeiture under equity to the respondent is that the Court of Appeal did not properly evaluate the evidence in the case as a whole. Had it done so, it was contended, it would have found that the respondent was not entitled to that relief, because his hands were not clean. He had acted contrary to the maxim of equity that he who comes to equity, must have clean hands. The appellant's objectionable conduct was that he had sublet the suit property without the consent of the appellant, in breach of covenant 4(e) of the lease agreement. For this submission, the learned counsel relied on <strong><em>Gill &amp; Another - vs - Lewis &amp; Another (1956) I.All.E.R. 844; </em></strong>and <strong><em>Barrow -vs - Isaacs &amp; Son (1891) IQB, 412;</em></strong></p> <p>In opposition to the first and second grounds of appeal, the respondent's learned counsel submitted that the learned trial judge was justified in the exercise of her discretion to relieve the respondent from forfeiture because she had jurisdiction to do so under the law of equity provided for by section 16 (2)(c) of the J.S. She also had jurisdiction to do so by virtue of the provisions of section 35 of the same Statute. Further, an appellate court does not normally interfere with the exercise of discretion by a trial court.</p> <p>The learned Counsel further contended that the provisions of section 27 of the J.S. do not restrict relieving lessees against forfeiture to breach of the covenant for payment of rent only. The section is not exhaustive. Its provisions are wide enough to permit relief for breaches other than for non-payment of rent. Learned Counsel submitted that under section 16 of the J.S., the High Court has jurisdiction to administer equity and common law. In common law, and equity, courts have jurisdiction to grant relief for breaches of covenants other than for payment of rent as well. Learned Counsel relied on <strong><em>Bilson and Others -vs - Residential Apartments Ltd. (1992) AC 494.</em></strong></p> <p>As I have said already in this judgment, the appellant, by his suit in the High Court sought to enforce his right of re-entry against the respondent for breach by the latter of covenants in the lease agreement between them. One of the covenants breached by the respondent was for payment of rent. By his counter-claim pleaded in his w.s.d. the respondent sought to be relieved from forfeiture under section 27 of the J.S., which provides:</p> <blockquote><br /> <br /> <strong><em>"27(1) Where a lessor is proceeding, by action or otherwise, to enforce a right of re-entry, or forfeiture for non-payment of rent, the lessee may in the lessor's action or in action brought by himself or herself apply to the High Court for relief.</em></strong><br /> <strong><em>(2) The High Court, under sub-section (1) of this section may:</em></strong></blockquote> <blockquote> <blockquote><strong><em>(a) grant any relief it considers fit on such terms as to costs, expenses, damages, compensation, penalty, or otherwise including the granting of an injunction to restrain any future non-payment of rent as it thinks fit; or</em></strong></blockquote> </blockquote> <blockquote> <table> <tbody> <tr> <td><strong><em>(b)</em></strong></td> <td><strong><em>refuse the relief sought as it thinks fit."</em></strong></td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>The learned trial judge granted the respondent relief against forfeiture under section 27 of the J.S. on the ground that the section gives the High Court unrestricted discretion to grant to a lessee relief against forfeiture for non-payment of rent and for breaches of other covenants in a lease.<br /> <br /> <br /> The Court of Appeal, rightly so in my view, criticized the learned trial judge for relying on s.27 for that decision. Kitumba, J.A., with whose judgment the other members of the court agreed, said:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><em>"With due respect to the learned trial judge she misinterpreted section 27 of the Judicature Statute when she held that she could use the section to grant relief against forfeiture for breach of other covenants in the lease apart from non-payment of rent. The marginal note of the section is </em></strong><em>"Relief from forfeiture for non-payment of rent"</em></p> <p>The learned Justices of Appeal, nevertheless, proceeded to hold that the learned trial judge properly exercised her discretion in equity under sections 16(2) and 35 of the J.S. in favour of relieving the respondent from forfeiture for breaches of covenants other than for payment of rent. The following reasons appear to be their justification for upholding the learned trial judge's decision.<br /> <br /> <br /> First, section 16(2) of the J.S. imposes a duty on the High Court to use equity where there is no written law.<br /> <br /> <br /> Second, contrary to the appellant's contention in his appeal to the Court of Appeal, section 35 is not in general terms. It can be used to provide any remedy.</p> <p>Third, the learned trial judge rightly relied on the authority of <strong><em>- Hyman and Another -vs- Rose (1912) A.C.632. </em></strong>That case considered section 14(1) of the Conveyancing and Property Act, 1881 of England which provided for relief against forfeiture for breaches of covenants in leases generally. In the instant case Kitumba, J.A. referred to the authority and said:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>"It <em>is not restricted to non-payment of rent. However, I would like to add that she was right in as far as she followed the reasoning of that authority with regard to section 27 of the Judicature Statute to grant relief against forfeiture for non-payment of rent. She observed in that authority how the courts should exercise discretion when the statute allows it. What is stated in that case is not different from our law. I am inclined to hold that in the circumstances, the trial judge properly used her discretion."</em></strong></p> <p>Fourth, it is well established that the Court of Appeal will not interfere with the exercise of discretion by a trial court unless it is satisfied that the trial court misdirected itself on some matter and as a result arrived at a wrong decision, or unless it is manifested from the case as a whole that the judge was clearly wrong in the exercise of the discretion and that as a result there has been injustice. The learned Justices of Appeal followed <strong><em>Mbogo and Another -vs- Shah (1968) E.A.93.</em></strong></p> <p>I shall deal with the reasons given by the learned Justices Court of Appeal, in the same order.</p> <p>S.16(2) of the J.S. provides:</p> <blockquote><br /> <br /> <strong><em>"16(2) Subject to the provisions of the Constitution and of this Statute, the jurisdiction of the High Court shall be exercised:</em></strong></blockquote> <blockquote> <blockquote><strong><em>a) in conformity with written law including any law in force immediately before the commencement of this Statute.</em></strong><br /> <strong><em>b) subject to any written law and in so far as the written law does not extend or apply, in conformity with:</em></strong></blockquote> </blockquote> <p><strong><em>i)</em></strong><em> <strong>the common law and the <u>doctrines of equity;</u></strong></em></p> <p>&nbsp;</p> <p><strong><em>ii)</em></strong><em> <strong>any established and current custom or</strong></em><br /> <strong><em>usage; and</em></strong></p> <p>&nbsp;</p> <p><strong><em>c) <u>Where no express law or rule is applicable to any matter in issue before the High Court, in conformity with the principles of justice, equity and good conscience</u>."</em></strong></p> <p>&nbsp;</p> <p><em>(The underlining is mine).</em><br /> &nbsp;</p> <p>The effects of the provisions of this section as I understand them are that the jurisdiction of the High Court shall be exercised, firstly, in conformity with written law, including any law in force immediately before the commencement of that Statute; Secondly, subject to any written law and in so far as the written law does not extend or apply, in conformity with the doctrines of equity, and thirdly, where no express law or rule is applicable to the matter in issue before the Court, in conformity with the principles of equity. In the first and second cases, the doctrines and principles of equity apply only in so far as express law or rule does not extend or apply to the matter in issue before the High Court. In the instant case, the issue before the High Court which tried the suit and now an issue in this appeal, was whether the respondent was entitled to the equitable remedy of relief against forfeiture for breaches which he committed of the covenants in the lease.</p> <p>In my view since section 27(c) of the J.S. is written and an express law which applied to the matter in issue before the High Court, the jurisdiction of that Court could be exercised only in conformity with that written law. Consequently the High Court had no jurisdiction to apply the doctrines or principle of equity to the issue at hand. With the greatest respect therefore, I do not agree that the provisions of section 16(2) (b)(i) and (c) were applicable. It was therefore an error to grant the respondent the equitable remedy of relief against forfeiture for breach of the covenant by him not to sub-lease the suit property without written consent of the appellant lessor and to keep the suit property in a tenantable condition.<br /> &nbsp;</p> <p>Section 35 of the J.S. provides:</p> <p>&nbsp;</p> <p><strong><em>"The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Statute or any written law, grant absolutely or on such terms and conditions as it thinks just, 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."</em></strong><br /> With great respect, my view is that the section cannot be used by the High Court to grant a remedy different from the one already provided for by another written law. In the instant case, the High Court had no jurisdiction to grant to the respondent the equitable remedy of relief against forfeiture for breach of the covenants of not to sub-lease the suit property without the lessor's written consent, and to keep the same in good and tenantable condition, in view of the provisions of section 184 of the RTA, and section 27 of the J.S.. For these reasons it was, with respect, an error by the learned trial judge to grant the equitable remedy of relief against forfeiture as he did, a decision which, with respect, the Court of Appeal wrongly upheld.<br /> <br /> <br /> As regards the authority of <strong><em>Human and Another -vs- Rose (1912) AC. 632 </em></strong>(supra), my view is that that case is not relevant to the instant case. The provisions of section 14 of the Conveyancing Act, 1881, of England upon which the decision of that case turned, concerning granting of relief against forfeiture, appear to be wider than the provisions of sections 27 and 16(2) of the J.S. In any case, the provisions of the English Statute are different from those of the Ugandan Statute in question, and do not apply in Uganda.</p> <p>Under the provisions of sub-section 27(2) of the J.S. the High Court has discretion under sub-section (1) thereof to grant relief sought against forfeiture for non payment of rent. It may grant any relief it considers fit. It may also refuse the relief sought as thinks fit. In the instant case, the High Court purported to exercise a discretion of granting relief against forfeiture for breaches of covenants where it did not have jurisdiction to do so. Consequently, with respect, the question of the Court of Appeal declining to disturb the exercise of discretion by the trial court did not arise.</p> <p>In the circumstances the first and second grounds of appeal must also fail.</p> <p>In the result, I would allow this appeal with costs here and in the Courts below. I would also set aside the judgments and orders of the High Court and of the Court of Appeal and substitute therefore a judgment allowing the appellant's suit with orders that:</p> <blockquote> <table> <tbody> <tr> <td>(a)</td> <td><strong><em>It is hereby declared that Erukana Kuwe, the plaintiff, has lawfully re-entered the suit property and terminated the defendant's lease thereof;</em></strong></td> </tr> <tr> <td>(b)</td> <td><strong><em>The Vasrambhai Damji Vader be and is hereby restrained by a permanent injunction from evicting the plaintiff's tenant from the suit property;</em></strong></td> </tr> <tr> <td>(c)</td> <td><strong><em>The Registrar of Titles be and is hereby ordered to note Erukana Kuwe's re-entry of the suit property in the Register.</em></strong></td> </tr> <tr> <td>(d)</td> <td><strong><em>Erukana Kuwe shall have the costs of the suit. </em></strong></td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF ODOKI, CJ</u></strong></p> <p>&nbsp;</p> <p>I have had the benefit of reading in draft the judgment delivered by Oder JSC and I agree with it and the orders he has proposed.</p> <p>As the other members of the court also agree with the judgment and orders proposed by Oder JSC, this appeal is allowed with orders as proposed by Oder.<br /> &nbsp;</p> <p><strong><u>JUDGMENT OF TSEKOOKO JSC:</u></strong></p> <p><br /> I have had the benefit of reading in draft the judgment of my learned brother Oder JSC, and I agree that this appeal should be allowed with costs to the appellant here and in the two Courts below.</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF MULENGA, JSC</u></strong></p> <p>I had opportunity to read in draft, the judgment prepared by my learned brother Oder JSC. I have come to the same conclusion as he did, that the appeal ought to succeed, and I concur in the orders he proposes. I wish, however, to state in brief my reasons for coming to that conclusion, albeit for emphasis only.</p> <p>The facts and background of this appeal are so well set out in the judgment of Oder JSC, I need not repeat them. It will suffice to summarise only what is necessary to put in context what I wish to say. The case arose out of a lease by which the appellant leased the suit property to the respondent's late father. During the subsistence of the lease, the lessee breached three of the lessee's covenants. On basis of those breaches, the appellant terminated the lease, and in exercise of his right of re-entry, he rented out the suit property to a third party, one Hassan. Apparently, at that material time, Hassan to whom the property was previously sub-let by the lessee's agents without the consent of the appellant as lessor, was under notice to vacate, as his sub-tenancy had been terminated by the same agents. The appellant's application for the re-entry to be noted in the register under the Registration of Titles Act <strong><em>("RTA") </em></strong>(Cap.205), was turned down. He filed suit in the High Court, praying for, <strong><em>inter alia :-</em></strong></p> <blockquote><br /> a declaration that he had lawfully re-entered and terminated the lease<br /> an order directing the Registrar of Titles to note the re-entry.</blockquote> <p>&nbsp;</p> <p>The respondent's late father was cited as defendant, but in the course of the trial, when it was disclosed that he had died, the respondent, as administrator of his estate, was substituted. The suit was defended with a denial of the breaches of covenant, and in the alternative, a counter- claim was pleaded praying for, <strong><em>inter alia-</em></strong></p> <blockquote><br /> relief against forfeiture of the lease possession of the suit property.</blockquote> <p>&nbsp;</p> <p>The learned trial judge dismissed the appellant's suit, and granted to the respondent unconditional relief against forfeiture of the lease. The Court of Appeal, upheld her judgment. Although it accepted the criticism that the trial judge erred in purporting to grant the relief against forfeiture under section 27 of the Judicature Statute, 1996, it held that she had properly exercised her discretion to grant the relief under undisclosed principles of equity.</p> <p>In this Court, counsel for the appellant placed much reliance on the third ground of appeal, and argued it first. It reads:-</p> <p>&nbsp;</p> <p><strong><em>"3. The learned Justices of Appeal erred in law in holding that S.184 of the Registration of Titles Act (Cap.205) was not applicable to the matter before Court"</em></strong></p> <p>It is well settled that, by virtue of the provisions of section 184 of the RTA, a lessee is precluded from bringing to court any action of ejectment or recovery of land against a lessor who is registered as proprietor of the land. In the case of the <strong><em><u>Executrix of the Estate of the late Christine Mary Namatovu Tebejjukira and another vs Noel Grace Shalita Stananzi</u> </em></strong>Civil Appeal No. 2 of 1988 (S.C.) (unreported) ("<strong><em><u>Tebejjukira's Case</u>"), </em></strong>this Court held that a lessee seeking relief against forfeiture is also so precluded <em><u>"where the registered proprietor has re-entered"</u> </em>lawfully. The rationale behind that is that a lawful re-entry terminates the lease. In the circumstances therefore, the issue framed at the trial, whether there was <em>"a re-entry of the premises in law by the plaintiff </em>(appellant)" was critical, and it had to be answered unequivocally. Unfortunately, the courts below were far from clear in the manner they dealt with the issue.<br /> <br /> <br /> With due respect to the learned trial judge, she was equivocal in her answer to the issue. Initially, after holding that the appellant was entitled to re-enter on strength of the breaches of covenants by the lessee, she noted the argument, supported by several authorities, that the plaintiff had exercised the right of re-entry by renting the premises to Hassan. After reciting those authorities she held:-</p> <p><strong><em>"The above authorities state the proposition of the law correctly and I have nothing to add. <u>The plaintiff in this case re-entered by letting the property to Hassan".</u></em></strong></p> <p>(emphasis is added).</p> <p>Subsequently, while considering whether a case for the grant of relief from forfeiture had been made out, she made a couple of observations which are not reconcilable with that holding or consistent with each other. First, in reference to the renting of the premises by the appellant to Hassan, she observed that the <em>"only interest currently subsisting on the property" </em>was the tenancy between the appellant and Hassan. In passing, she said that the re-entry was <em>"not yet complete since the register is still intact", </em>and opined that the appellant's interest in the land was <em>"equitable not legal", </em>citing as authority, <strong><em><u>Lugogo Coffee Ltd. Vs Singo Combined Coffee Growers Ltd.</u> </em></strong>(1976) HCB 92. She however, overlooked the holdings in that case, which in my view are correct statements of the law, to the effect that a lawful re-entry terminates the lease, and that refusal by the Registrar to note the re-entry in the register does not have the effect of keeping the lease subsisting. Instead, after reviewing Hassan's evidence as the only evidence on how his tenancy came about, she observed that the appellant <em>"did not physically gain possession of the property <strong>[but] </strong>merely took advantage of a situation created by the lessee's agents." </em>Here again, it seems to me that she overlooked the evidence of the appellant supported by that of his witness, Samuel Bayizi, to the effect that he had taken over the the house and started renovating it. Be that as it may, the learned trial judge's holding as I understand it was in summary, that by renting the premises to Hassan, the appellant had re-entered the property, but that the re-entry was incomplete, because it was not noted in the register, and was not effected by the appellant taking physical possession of the property.</p> <p>The Court of Appeal, however, endorsed the trial judge's observations understanding them to mean that there had been no lawful re-entry on the part of the appellant. In the leading judgment, Kitumba J.A., seeking to distinguish the decision in <strong><em><u>Tebejjukira's</u></em></strong><br /> <strong><em><u>Case</u> </em></strong>(supra) said this:-</p> <p><strong><em>"In that case the lessee brought an action in trespass </em></strong></p> <blockquote><strong><em>against a lessor who had lawfully re-entered the land. <u>In the present case the lease had not vet been voided and the appellant has not physically re-entered the land.</u> The learned trial Judge found that the appellant simply told Hassan that he was the rightful owner of the premises and not the respondent The appellant made a tenancy agreement with Hassan. This, in the judge's view, did not amount to physical re-entry. She held that the appellant just took advantage of the situation created by the respondent's agents. In my view, the learned trial judge considered all the circumstances of the case and properly came to the right conclusion that section 184 of the Titles Act was not applicable. I am unable to fault her on this finding." </em></strong>(emphasis is added).</blockquote> <p>With due respect, I am unable to agree with the holding that the respondent's "lease <strong><em>had not yet been voided". </em></strong>It is correct that the breaches of the lessee's covenants rendered the lease voidable at the option of the lessor. In order to void it he had to terminate it by reentry or otherwise. To my mind he clearly did this when he effectively rented the property to Hassan. The respondent's lease and Hassan's tenancy, both granted by the same landlord, could not in law subsist together. If the tenancy was lawful then it terminated the lease. Neither court below suggested, and I do not see any ground on which it could be suggested, that the appellant acted in breach of the terms of the lease or otherwise unlawfully, when he let the suit property to Hassan. Even if I do not take into account the appellant's evidence that he had taken over the property and started renovations, which evidence was overlooked by the courts below, I still would agree with counsel for the appellant that when the appellant let the property to Hassan, he assumed constructive possession.<br /> <br /> In my view, the question on which the case turns is whether there was lawful re-entry and termination of the lease, rather than whether section 184 of RTA, is applicable to the case. However upon answering the former question in the affirmative as I do, it follows that under s.184 the respondent is precluded from seeking, by counter-claim or otherwise, to <strong>dispenses </strong>the appellant. For that reason the third ground of appeal ought to succeed.<br /> <br /> The other two grounds of appeal are concerned with the grant of relief from forfeiture. I have two brief comments to make. The first is on the Court of Appeal holding that the trial judge properly exercised her discretion in granting the relief. In the leading judgment, Kitumba J.A., correctly pointed out that the trial judge had relied on an English authority which dealt with a provision of an English statute that vested much wider discretion in the court for granting relief from forfeiture, than was the case under section 27 of the Judicature Statute, 1996, which was under her consideration. Indeed the difference between the two statutory provisions is glaring. The English provision, under section 14 of the Conveyancing Act,1881 covered the right of re-entry_for <strong>"<u>a <em>breach of any covenant or condition in the lease</em></u><em>", </em></strong>and provided in sub-section (2) thus:</p> <blockquote> <blockquote><strong><em>"Where a lessor is proceeding, by action or otherwise, to enforce <u>such a ri2ht of re-entry or forfeiture,</u> the lessee may in the lessor's action, if any, or in any action brought by himself, apply to the court for relief;"</em></strong></blockquote> </blockquote> <p>&nbsp;</p> <p>In contrast section 27 of the Judicature Statute, provides:</p> <blockquote><strong><em>"Where a lessor is proceeding, by action or otherwise, to enforce <u>a right of re-entry or forfeiture for non-payment of rent,</u> the lessee </em></strong>(or successor in title) <strong><em>may in the lessor's action or in an action brought by himself or herself apply to the High Court for relief."</em></strong></blockquote> <p>&nbsp;</p> <p>Nevertheless, it is apparent that the said English authority <strong><em>(<u>Hyman vs Rose</u>, </em></strong>1912 AC 632), persuaded the learned trial judge to the view that she had unfettered discretion to grant the relief, for after quoting from that authority, she said:</p> <p><strong><em>"Essentially what the court said in this case, is that the power given to court to grant or refuse relief against forfeiture is a discretionary one and no conditions were imposed on how that discretion is to be exercised".</em></strong></p> <p>Later, notwithstanding authorities to the effect that the relief under the said section 27, may be granted to a lessee whose only default is non-payment of rent, she said that the discretion given to court by Parliament <em>"under section 27 is wide and no conditions were imposed" </em>for its exercise. So, although she had held that the respondent had breached other covenants, she proceeded to grant the relief under that mistaken view. How then can it be said that she properly exercised her discretion when she exercised a discretion she did not have?<br /> &nbsp;</p> <p>Lastly I should comment on the view expressed in the leading judgment of the Court of Appeal about the application of equity to the case. If I understood the judgment correctly on that point, I would sum it up as follows:<br /> <br /> <br /> Under section 16(2) of the Judicature Statute, 1996, the High Court is enjoined to exercise its jurisdiction in conformity with the doctrines of equity <em>"where written law does not extend or apply". </em>Under section 35 of the same Statute, the High Court is also enjoined to grant to a party such remedy as the party is entitled to in respect of any legal or equitable claim properly brought before it. No written law extends or applies to re-entry for sub-letting without the lessor's consent.<br /> <br /> <br /> On that premise, the learned Justice of Appeal, held that <strong><em>"the learned trial judge's resort to equity in this matter was right".</em></strong></p> <p>With due respect the foregoing reasoning is flawed from its premise. It is not correct that there is no written law applicable to the matter in question, within the meaning of section 16 of the Statute. The applicable law is section 27 of the Statute, which creates the remedy of <em><u>"relief from forfeiture</u>" </em>and renders it available only lessees threatened with re-entry or forfeiture <em><u>"for non-payment of rent</u>". </em>In my view, to make it available to lessees in breach of other covenants also, would be tantamount to amending the statute which cannot be what is envisaged under section 16(2) of the Statute. I do appreciate that on surface the respondent appears to have ended up with a raw deal. It must be remembered however, that it is incumbent on the court to enforce the terms of an agreement freely and lawfully entered into by the parties. I have always wondered why a developer would readily accept to include in a building contract a forfeiture clause when, to protect his investment, he could contract out of it or bargain to make it difficult for the clause to be invoked. Where however the clause has been agreed upon, as in this case, with the full knowledge of its effect, then the principles of the law of contract have to be upheld.</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF KANYEIHAMBA, J.S.C.</u></strong></p> <p>I have read in draft the judgment of my brother, Oder JSC, and I agree with him that this appeal should be allowed for the reasons he has given. I also agree with the orders he has proposed.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><em>Dated at Mengo, this 18th Day of September, 2002.</em></strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-532ae3044efdc816e27ebaec93c1ed91"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2002/7/supreme-court-2002-7.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:34:34 +0000 Anonymous 15546 at https://old.ulii.org Kampala District Land Board and Anor v National Housing and Construction Corporation ((Civil Appeal No.2 of 2004 )) [2005] UGSC 20 (25 August 2005); https://old.ulii.org/ug/judgment/supreme-court/2005/20 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></li><li class="field-item odd"><a href="/tags/possession-property" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Possession of Property</a></li><li class="field-item even"><a href="/tags/estoppel" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Estoppel</a></li><li class="field-item odd"><a href="/tags/fraud-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Fraud</a></li><li class="field-item even"><a href="/tags/lease-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lease</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA </strong></p> <p>&nbsp;</p> <p><strong>IN THE SUPREME COURT OF UGANDA </strong></p> <p><strong>AT MENGO</strong><br /> <strong>(CORAM: ODOKI CJ, ODER, TSEKOOKO, KAROKORA AND KANYEIHAMBA JJ.SC)</strong><br /> <strong>CIVIL APPEAL NO.2 OF 2004</strong><br /> <strong>BETWEEN</strong></p> <p><strong>1.</strong> <strong>KAMPALA DISTRICT LAND BOARD )</strong><br /> <strong>2. CHEMICAL DISTRIBUTORS</strong> <strong>) ....................................APPELLANTS</strong><br /> <br /> <strong>AND</strong><br /> <br /> <strong>NATIONAL HOUSING AND CONSTRUCTION CORPORATION) ... RESPONDENT</strong></p> <p><em>(Appeal from the judgment and orders of the Court of Appeal (Mukasa-Kikonyogo, DCJ, Twinomujuni and Byamugisha JJ.A) DATED 3<sup>rd </sup>February 2004 in Civil Appeal No.43 of 2002)</em><br /> &nbsp;</p> <p><strong><u>JUDGMENT OF ODOKI CJ</u></strong></p> <p>&nbsp;</p> <p>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.</p> <p>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)<br /> <br /> <br /> 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.<br /> <br /> <br /> 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 1<sup>st</sup> appellant granted the lease. Subsequently, the 2<sup>nd</sup> appellant received a land title to the land now registered as Leasehold Register Volume 2860, Folio 4, Luthuli Second Close, Bugolobi.<br /> <br /> <br /> The respondent filed a suit against the two appellants seeking the following orders:</p> <blockquote><br /> <br /> (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<br /> &nbsp;Bugolobi Estate, belongs exclusively to the respondent and not any other party.<br /> (b) A declaration that the grant of title over the suit land by the first appellant to the second appellant was void <strong><em>ab </em><em>initi</em>o </strong>as there was no land available to the respondent for grant to 2<sup>nd </sup>respondent.<br /> (c) A declaration that the second appellant's lease and title to the suit land was null and void.<br /> (d) An order directing the Registrar of Titles to cancel the certificate of title to the suit land issued to the 2<sup>nd</sup> appellant.<br /> (e) A permanent injunction to issue against the second defendant restraining it, its agents, servants and any other person deriving title from the 2<sup>nd</sup> defendant from entering remaining or otherwise interfering with the suit property.<br /> (f) An order for eviction of the second appellant from the suit land.<br /> (g) An order directing the first defendant to grant the suit land to the respondent.<br /> <br /> (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 <strong><em>bona fide </em></strong>purchaser or lawful or customary tenant on the suit land, and also denied allegations of fraud.</blockquote> <p><br /> <br /> The second appellant pleaded, <strong><em>inter alia, </em></strong>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.<br /> <br /> <br /> 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.<br /> <br /> <br /> The appellants preferred eleven grounds of appeal which are stated as follows:</p> <blockquote><br /> 1. The learned Justices of Appeal erred in law when they failed to consider the submission of the appellants.<br /> 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.<br /> 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.<br /> 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.<br /> 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.<br /> 6. The learned Justices of Appeal erred in law and fact when they held that the suit land belongs to the respondent.<br /> 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.<br /> 8. The learned Justices of Appeal erred in law when they held that the suit land was not available for leasing.<br /> 9. The learned Justices of Appeal erred in law and fact when they held that the application and registration of the 2<sup>nd </sup>appellant was fraudulent.<br /> 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.<br /> 11. The learned Justices of Appeal erred in law when they awarded the respondent damages and ordered the 1<sup>st </sup>appellant to lease the suit land to the respondent.</blockquote> <p><br /> <br /> The respondent filed a notice of grounds for affirming the decision of the Court of Appeal consisting of the following grounds:</p> <blockquote>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 1<sup>st</sup> May, 1970 for a term of 190 years.<br /> 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.<br /> 3. The 1995 Constitution, though it abolished statutory leases, did not declare the said leases to have been null and void <strong><em>ab initio.</em></strong></blockquote> <p>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.</p> <p>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.<br /> <br /> <br /> <strong>Respondent's Possession or Occupation of the suit land:</strong></p> <p>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.<br /> <br /> <br /> 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.<br /> <br /> <br /> 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.<br /> <br /> <br /> 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 1<sup>st</sup> 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.<br /> <br /> <br /> 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<sup>nd</sup> 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.</p> <p>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<sup>nd </sup>appellant. Minutes of the meeting of the 1<sup>st</sup> 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 <strong><em>"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".</em></strong><br /> <br /> <br /> Furthermore in a letter dated 22<sup>nd</sup> 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".<br /> &nbsp;</p> <p>The learned Justice of appeal concluded,</p> <blockquote><strong><em>"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."</em></strong></blockquote> <p>&nbsp;</p> <p>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.<br /> <br /> <br /> 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.<br /> <br /> <br /> 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.<br /> <br /> <br /> <strong>Whether the land occupied by the respondent was registered land.</strong></p> <p>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:</p> <blockquote>(a) the suit land was registered land on the coming into force of the 1995 Constitution,<br /> (b) the existence of a plot number for the suit land meant that it was registered, and</blockquote> <blockquote> <table> <tbody> <tr> <td>(c)</td> <td>the respondent was a bonafide occupant of the suit land.</td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>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:</p> <blockquote> <blockquote><br /> <strong><em>"(2) Bonafide occupant means a person who before the coming into force of the Constitution-</em></strong></blockquote> </blockquote> <blockquote> <table> <tbody> <tr> <td><strong><em>(a)</em></strong></td> <td><strong><em>had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or</em></strong></td> </tr> <tr> <td><strong><em>(b)</em></strong></td> <td><strong><em>had been settled on the land by the Government or an agent of the Government which may include a local authority."</em></strong></td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>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 <strong><em>"A tenant by occupancy on registered land shall enjoy security of occupancy on the land."</em></strong></p> <p>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.<br /> <br /> <br /> 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 <strong><em>"a registered owner in accordance with the Registration of Titles Act." </em></strong>He argued that registration occurs where a certificate of title is issued, not in this case where the land had only been surveyed.<br /> <br /> <br /> 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<sup>nd</sup> appellant, there was no registered owner. Therefore the respondent could not qualify to be a bona fide occupant, he concluded.<br /> <br /> <br /> 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<sup>st </sup>appellant, where the City Advocate advised the 1<sup>st</sup> 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,</p> <blockquote><br /> <strong><em>"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."</em></strong></blockquote> <p>&nbsp;</p> <p>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.<br /> <br /> <br /> 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 <strong><em>"bona fide occupant" </em></strong>and rights accruing to a bona fide occupant, accrue to the respondent.</p> <p>In dealing with the question whether the respondent was a bona fide occupant of registered land, Twinomujuni, JA, in his lead judgment observed,</p> <blockquote><strong><em>"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."</em></strong></blockquote> <p>&nbsp;</p> <p><strong><em>The </em></strong>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:</p> <blockquote> <blockquote><br /> <br /> <strong><em>"9. The 2<sup>nd</sup> defendant's Title LRV 2860 Folio 20 issued on 25/01/2001 is derived from Sheet No.71/1/18/Sw/2.</em></strong><br /> <strong><em>10. Kampala Municipal Council was the Registered Proprietor of Land under a Statutory Lease LVR 254 Folio 6.</em></strong><br /> <strong><em>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."</em></strong></blockquote> </blockquote> <p>&nbsp;</p> <p>The Learned Justice^ of Appeal then concluded:</p> <blockquote><strong><em>"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<sup>th</sup> 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."</em></strong></blockquote> <p><br /> <br /> I am unable to fault the conclusions reached by the learned Justice of Appeal, with whom other members of the Court of Appeal agreed.<br /> <br /> <br /> 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.</p> <p>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:</p> <blockquote><br /> <br /> <strong><em>"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</em></strong></blockquote> <p>&nbsp;</p> <p>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.<br /> <br /> <br /> 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.</p> <p>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.<br /> <br /> <br /> 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 <strong><em>ab initio.</em></strong></p> <p>I think it is well settled that the Constitution abolished statutory leases. Article 285 of the Constitution provides,</p> <blockquote> <blockquote><br /> <strong><em>"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."</em></strong></blockquote> </blockquote> <p>&nbsp;</p> <p>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.</p> <p>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.</p> <p>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.<br /> <br /> <br /> 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,</p> <blockquote> <blockquote><br /> <strong><em>"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."</em></strong></blockquote> </blockquote> <p>&nbsp;</p> <p>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.</p> <p>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.<br /> <br /> <br /> It seems to me, therefore, t<strong><em>h</em></strong>at 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.<br /> &nbsp;</p> <p>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.<br /> <br /> <br /> 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:</p> <blockquote> <blockquote><br /> <br /> <strong><em>"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."</em></strong></blockquote> </blockquote> <p>&nbsp;</p> <p>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.<br /> <br /> <br /> <strong>Whether the grant of the lease was fraudulent:</strong></p> <p>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<sup>nd</sup> 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 1<sup>st</sup> 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<sup>st</sup> appellant from allocating land to the 2<sup>nd</sup> appellant, but in this case since the respondent was not a bona fide occupant it could not enjoy security of tenure.<br /> &nbsp;</p> <p>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.<br /> <br /> <br /> 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<sup>nd</sup> appellant. G round 8 should therefore fail. With regard to the holding that the 2<sup>nd</sup> 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<sup>nd</sup> 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 1<sup>st</sup> appellant but the protests were ignored. Muhimbura submitted that the protests came in 2001 after the allocation of the suit land to the 1<sup>st</sup> appellant in 1999.<br /> <br /> <br /> 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.</p> <p>Mr. Mutawe for the respondent submitted that the lease to the 2<sup>nd </sup>appellant was irregularly accepted. He pointed out that the 2<sup>nd </sup>appellant was required to accept the offer within one month from the date of offer which was 2<sup>nd</sup> June 1999. The offer should therefore have been accepted by 3<sup>rd</sup> July 1999. However by the time counsel for the respondent wrote the letter of protest to the 1<sup>st</sup> appellant on 19 July 1999, the 2<sup>nd</sup> 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<sup>nd</sup> appellant to the 1<sup>st</sup> 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 1<sup>st</sup> appellant claimed that the respondent was trying to steal Muzee's Land. The 1<sup>st</sup> appellant said they were willing as a family to negotiate with respondent if the latter wanted to expand their development.<br /> <br /> <br /> The second piece of evidence of fraud according to learned counsel, was Exh.P.2, a letter from the Managing Director of the 1<sup>st</sup> appellant, Silver Byaruhanga dated August 8, 1999 addressed to the 2<sup>nd </sup>appellant which when considered together with Exh. P.12 which contains minutes of the meeting of the 1<sup>st</sup> 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<sup>nd</sup> appellant confessed to have bribed the workers of the 1<sup>st</sup> appellant in order to grant him a road. This was contained in Exh.P.2 where the 2<sup>nd</sup> appellant stated,</p> <blockquote> <blockquote><br /> <br /> <strong><em>"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</em> w<em>as buying the road and I got my deal and I am left with a balance of 500,000/= to be paid later."</em></strong></blockquote> </blockquote> <p>&nbsp;</p> <p>The third piece of evidence is Exh.p.3 which is a letter dated 5 October 2000 from the 2<sup>nd</sup> appellant to the 1<sup>st</sup> appellant applying for change of status and revision of premium and ground rent on the suit land. The 2<sup>nd</sup> appellant requested the 1<sup>st</sup> appellant to <strong><em>"revisit our case and approve our application as kibanja for Chemical Distributors thus giving us fresh terms."</em></strong></p> <p>Mr. Mutawe pointed out that the change of status was explained in Minute KDLB52/58/99 where it was stated that the 2<sup>nd</sup> 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<sup>st</sup> appellant that the 2<sup>nd</sup> 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 2<sup>nd</sup> appellant was asked to be granted the suit land as a customary tenant, and it was duly granted as a kibanja.</p> <p>The fourth evidence of fraud according to learned counsel is that under Exh. P.12 it was claimed in 1<sup>st</sup> 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.<br /> <br /> <br /> It was submitted by counsel that the fifth piece of evidence was admitted facts No.34 and No.37 which indicated that the 1<sup>st </sup>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<sup>st</sup> appellant was granted.<br /> <br /> <br /> 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<sup>nd</sup> 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 <strong><em><u>John Katarikawe vs William Katweremu &amp; Others </u></em></strong>(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,</p> <blockquote> <blockquote><br /> <br /> <strong><em>"By insisting on registration of the suit land in favour of the 2<sup>nd</sup> 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."</em></strong></blockquote> </blockquote> <p>&nbsp;</p> <p>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<sup>nd </sup>appellant went out of its way to defeat the interest of the respondent with the support of the 1<sup>st</sup> 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 2<sup>nd</sup> appellant.</p> <p>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<sup>nd</sup> 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<sup>st</sup> appellant wanted the suit land to be fully developed.</p> <p>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:</p> <blockquote> <blockquote><br /> <br /> <strong><em>"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."</em></strong></blockquote> </blockquote> <p>&nbsp;</p> <p>Therefore under Section 176 of the Registration of Titles Act, a registered proprietor is protected against ejectment except in certain cases, including fraud.</p> <p>The indefeasibility of title on ground of fraud has been considered in a number of decisions in our Courts. In <strong><em><u>Kampala Bottles Ltd vs Daminico(U) Ltd</u> </em></strong>Civil Appeal No. 22 of 1992, this Court approved the definition of fraud by the trial judge as follows:</p> <blockquote> <blockquote><br /> <br /> <strong><em>"It is well established that fraud means actual fraud or some act of dishonesty. In <u>Waimiha Saw Milling Co. Ltd vs Laine Timber Co. Ltd</u> (1926) AC 101 at p.106, Lord Buchmaster said, 'Now fraud implies some act of dishonesty.' Lord <u>Lindley in Assets Co. vs Mere Roihi</u> (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."</em></strong></blockquote> </blockquote> <p>&nbsp;</p> <p>It is now well settled that to procure registration of title in order to defeat an unregistered interest amounts to fraud. In <strong><em><u>Marko Matovu &amp; Others vs Mohammed Ssevivi and Another.</u> </em></strong>Civil Appeal No. 7 of 1978 (CA), <strong><em><u>Sijaka Nalima vs Rebecca Musoke.</u> </em></strong>Civil Appeal No. 12 of 1985 (SC) and <strong><em><u>Uganda Posts and Telecommunications vs Lutaaya</u> </em></strong>Civil Appeal No.36 of 1995 (SC) this Court approved the holding of the High Court in <strong><em><u>Katarikawe vs Katwireme</u> </em></strong>(Supra) where it was stated:</p> <blockquote> <blockquote><br /> <br /> <strong><em>"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."</em></strong></blockquote> </blockquote> <p>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<sup>nd</sup> 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.<br /> <br /> <br /> 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<sup>st</sup> 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.</p> <p>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.</p> <p>In his judgment, Twinomujuni JA, held that in light of his finding that the registration of the 2<sup>nd</sup> 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.<br /> <br /> <br /> The application by the respondent was made after the offer of a lease to the 2<sup>nd</sup> appellant by the 1<sup>st</sup> 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.<br /> <br /> <br /> <strong>Reliefs Granted:</strong></p> <p>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 1<sup>st</sup> appellant to lease the suit land to the respondent.</p> <p>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<sup>st</sup> 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<sup>st</sup> appellant to deal with the application of the respondent. The Court could not fetter the discretion of the 1<sup>st</sup> appellant. Counsel cited the case of <strong><em><u>Registered Trustees of Kampala Institute vs Departed Asian Property Custodian Board</u> </em></strong>Civil Appeal No. 21 of 1993 (SC) in support of his submissions.<br /> <br /> <br /> In concluding his judgment, Twinomujuni JA made the following order:</p> <blockquote> <blockquote><br /> <br /> <strong><em>"in the result, I would allow this appeal, set aside the judgment of the High Court dated 3<sup>rd</sup> December 2001 and enter judgment in favour of the appellant in terms as prayed in the plaint."</em></strong></blockquote> </blockquote> <p><br /> <br /> 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<sup>st</sup> 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.<br /> <br /> <br /> 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.</p> <p>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<sup>st </sup>appellant had discretion in granting leases but the discretion had to be exercised fairly and justly in accordance with the law.</p> <blockquote> <blockquote>&nbsp;</blockquote> </blockquote> <p>I would therefore modify the order granted in paragraph (g) in the plaint to read as follows:</p> <blockquote> <blockquote> <blockquote><strong><em>"(g) An order directing the 1<sup>st</sup> 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."</em></strong></blockquote> </blockquote> </blockquote> <p>&nbsp;</p> <p>I find no merit in grounds 6 and 11 which should substantially fail.<br /> &nbsp;</p> <p>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.</p> <p><strong><u>JUDGEMENT OF ODER. JJSC</u></strong></p> <p>I have had the benefit of reading in draft the judgment of the Hon. The Chief Justice, Hon. B.J. Odoki, CJ, with which I agree. I also agree with the orders proposed by him.</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF TSEKOOKO, JSC</u></strong></p> <p>&nbsp;</p> <p>I have had the benefit of reading in draft the judgment prepared by my Lord the learned Chief Justice which judgment he has just delivered. I agree with his reasoning and conclusions in this appeal and I also agree that the appeal should be dismissed with costs here and in the Courts below.</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF KANYEIHAMBA, JSC.</u></strong></p> <p><br /> <br /> I have had the benefit of reading in draft the judgment of my Lord, the Hon. Chief Justice and I agree with him that this appeal be dismissed with costs in this court and in the courts below.</p> <p><strong><em>Dated at Mengo, this 25<sup>th</sup> day of August 2005.</em></strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-ddcc8e7442370fde334a56ed75af3c15"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2005/20/supreme-court-2005-20.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:34:07 +0000 Anonymous 15508 at https://old.ulii.org