THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL COURT DIVISION)
MISC. APPLICATION NO. 758 OF 2012
ARISING FROM MISC. APPLICATION NO. 468 OF 2012
(All Arising from Arbitration Cause No. 9 of 2011)
- ATTORNEY GENERAL
- UGANDA LAND COMMISSION…...................................APPLICANTS
VERSUS
NAMAIBA TEA ESTATES LTD……………………………….RESPONDENT
BEFORE: HON. LADY JUSTICE HELLEN OBURA
RULING
This is an application brought under section 98 of the Civil Procedure Act (CPA) and Order 52 rules 1 and 2 of the Civil Procedure Rules (CPR) seeking for Orders that Miscellaneous Cause No. 486 of 2012 and the Orders made therein be set aside the subject matter being property of the Government of the Republic of Uganda registered and held in trust by Uganda Land Commission, registered as user and restricted to the Ministry of Public Service, National Records and Archives Centre and barred in law. The applicants also sought for an order that the costs of this application be provided for.
The grounds in support of this application are set out in the Notice of Motion as follows:-
- Miscellaneous Cause No. 486 of 2012 is barred in law.
- That orders made therein are void and unconstitutional.
- That it is in the interest of justice that the Orders in Miscellaneous Cause No. 486 of 2012 be revised and the orders therein set aside.
In support of the application is an affidavit deposed by H.I Kaweesa, the Secretary of the 2nd applicant. In answer to the application the respondent filed an affidavit in reply deposed by Alziik Namutebi, an advocate of the Courts of Judicature employed by the firm of advocates representing the respondent.
The gist of her reply is firstly, that Uganda Land Commission is the registered proprietor and owner with full legal capacity to deal with the property registered in its name as mandated by the Constitution and the relevant laws. Secondly, that the present execution is against the 2nd respondent and not the Government. Third and lastly, that there is no law barring a decree holder from attaching and selling government property in execution and if there was any such law, it would be inconsistent with Articles 8A, 21, 28 and 126 of the Constitution.
The background of this application as gathered from both parties is that the 2nd applicant on the instructions from Uganda Prisons Services entered into a contract with the respondent to lease Plot 33 Nakivubo road to them in exchange for construction of a new prison at Nakasongola. The Chief Government Valuer valued the land at one billion shillings which was to be the value of the construction works to be done at Nakasongola. The construction work later exceeded one billion shillings. The respondent then commenced arbitration proceedings against the applicants for the excess sum and a final award was delivered on 21/6/2011. The award was registered in this court and a Certificate of Order against the Attorney General was extracted and served on the 1st applicant. No payment was made by the 1st applicant and the respondent sought for execution against the 2nd applicant as the 2nd judgment debtor. Execution proceedings was instituted vide Misc. Application No. 486 of 2012 by way of attachment and sale of property comprised in FRV 1154 Folio 13 at Plot 8 Lourdel Road Nakasero registered in the name of the 2nd applicant.
When this application came up for hearing on the 17th of February 2012 Mr. Mohammed Mbabazi appeared for the respondent but the applicants were not represented. Counsel for the respondent sought permission to file written submissions which both parties did hence this ruling.
Counsel for the applicants submitted that the attachment and sale of Plot 8 Lourdel Road Nakasero is barred by law and public policy considerations arguing that it is government property held in trust by the 2nd applicant. In addition, it was contended that the property’s use is restricted to Ministry of Public Service National Record and Archives Centre.
The applicants’ counsel submitted that the law expressly bars any execution and attachment of Government property. For that position reference was made to section 19 of the Government Proceedings Act Cap. 77 which bars execution or attachment against government. Rule 15(a) of the Government Proceedings (Civil Procedure) Rules S.I 77-1 was also cited to support the argument that Order 22 of the CPR which relates to execution of decrees and Orders does not apply to Government.
In addition the applicants’ counsel cited Article 238 of the Constitution as the one that established the second applicant whose function according to Article 239 of the Constitution and section 49 of the Land Act is to hold and manage any land in Uganda vested in or acquired by the Government of Uganda in accordance with the provisions of the Constitution.
The applicants’ counsel also cited the case of Commissioner of Public Highways v San Diego (31 SCRA 617) where the Philippine Supreme Court held:
“The universal rule that where the state gives its consent to be sued by private parties either by general or special law it may limit claimant’s actions only up to the completion of proceedings anterior to the stage of execution and that the power of court ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments is based on obvious considerations of public policy.”
It was argued for the applicants that disbursement of public funds must be covered by the corresponding appropriation as required by law. The other argument for the applicants was that the functions and services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects as required by law.
On the other hand, counsel for the respondent submitted firstly, that the applicants in this case are the Attorney General and the Uganda Land Commission however the execution by way of attachment and sale is against the Uganda Land Commission, the 2nd applicant as the registered proprietor and owner of Plot 8 Lourdel Road. Secondly, that the execution process against the Attorney General/ 1st judgment debtor failed to realize the decretal sum, and satisfy the judgment debt. It was argued that the respondent applied for and obtained a Certificate of Order against the Government which was duly served on the relevant officials but to date remains unpaid.
According to the respondent, the execution is not against Government but rather against the 2nd applicant as a legal entity established by the Constitution and the Land Act which by virtue of annexture A to the affidavit in reply is the registered proprietor and owner of the attached property. It is the respondent’s case that the property belonging to the 2nd applicant can be attached without any bar from the Government Proceedings Act.
It was further submitted for the respondent that for government to invoke immunity or exemption from attachment it would be by way of objector proceedings. In relation to that it was argued that the present application is incompetent and not maintainable because it is not by way of objector proceedings as the 1st applicant claims that Plot 8 Lourdel road is its property.
With respect to the law cited, it was submitted by counsel for the respondent that section 19 of the Government Proceedings Act and Rule 15(a) of the Government Proceedings (Civil Procedure) Rules do not in any way protect the 2nd applicant from execution. It was argued that the execution under challenge is against the 2nd applicant which is like any statutory corporation that owns properties belonging to government but are not immune from execution.
Furthermore, the respondent argued that the exemption from attachment or immunity under section 19 is in respect of enforcement against Government but not attachment of Government property. In line with that the respondent’s counsel submitted that the only property immune from execution is provided for under section 44 of the Civil Procedure Act. It was counsel’s opinion that property belonging to Government is immune only if you want to enforce against Government. Finally, that property belonging to Government but registered in the name of a Government body is not immune from execution.
The respondent’s counsel also submitted that the law granting immunity to Government property against execution is presently outdated and obsolete. For that position reference was made to the case of Attorney General v. Osotraco Ltd CACA NO. 32 of 2002 where provisions granting immunity to government against court process were held as discriminatory. Also the case of Kenya Bus Service Ltd & Another v. Minister for Transport & 2 others [2012] KLR was cited to the effect that such provisions have been held to be discriminatory and unconstitutional.
I have given due consideration to the affidavits by both parties, the documents attached and the submissions of both counsel. Whereas the applicants’ case is that Plot 8 Lourdel Road Nakasero is property that the 2nd applicant holds in trust for the Government and therefore not liable to attachment, the respondent contends that indeed the 2nd applicant which is like any statutory corporation owns that property and is liable for attachment.
I will first deal with the competence of this application in as far as the 1st applicant is concerned as challenged by the respondent. The argument of the respondent’s counsel that Objector Proceedings would have been appropriate to seek court’s intervention in releasing the property from attachment, in my view, would be valid if the 1st applicant was merely objecting to the attachment on the ground that it has interest in it that merit protection by court. However, this application has a wider scope than that as it raises a question of illegality of the Order given by court in respect of the property being the subject of that Order and seeks to set it aside. The 1st applicant is not per se seeking for an order to release the property from attachment which would require bringing an objector proceeding.
In any event, it has been held that that no action may be defeated by use of wrong procedural mode. See Kinyanjui & Another vs Thande & Another [1995 – 98] EA 159 and Francis Wazarwahi Bwengye v Haki .W. Bonera Civil Appeal No.33 of 2009. Similarly, in Tarlol Singh Saggu v Roadmaster Cycles (U) Ltd CACA No. 46 of 2000 the Court of Appeal citing with approval the decision of Sir Charles Newbold P in Nanjibhai Prabhudas & Co. Ltd v Standard Bank Ltd [1968] 1 EA 670 held:
“The court should not treat any incorrect act as a nullity with the consequence that everything founded thereon is itself a nullity unless the incorrect act is of a most fundamental nature. Matters of procedure are not normally of a fundamental nature.”
The Supreme Court of Uganda emphasized in the case of Re Christine Namatovu Tebajjukira [1992 – 93] HCB 85 that:
“The administration of justice should normally require that the substance of disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights.”
For the above reasons, I do not find any fault with the procedure adopted by the 1st applicant in bringing this application so the argument of counsel for the respondent is accordingly rejected. It is instead my finding that this application is competent and maintainable at law.
I now turn to consider the merit of this application. Counsel for the applicants based his argument that the Order sought to be set aside is barred by law on section 19 (4) of the Government Proceedings Act Cap. 77 and rule 15(a) of the Government Proceedings (Civil Procedure) Rules as well as Articles 238 (1) and 239 of the Constitution.
Section 19 (4) of the Government Proceedings Act provides;
“Except as is provided in this section, no execution or attachment or process in the nature of an execution or attachment shall be issued out of any court for enforcing payment by the Government of any such money or costs as are referred to in this section, and no person shall be individually liable under any order for payment by the Government, or any Government department or any officer of the Government as such, of any such money or costs.”
Rule 15(a) of the Government Proceedings (Civil Procedure) Rules provides;
“Where an order of the kind mentioned in section 19 of the Government
Proceedings Act has been made, the following provisions of the principal
Rules shall not apply—(a) Order XXII (Execution of decrees and orders)”;
Meanwhile Article 238 (1) of the Constitution creates the 2nd Applicant. Article 239 that provides for its core function state as follows:
“The Uganda Land Commission shall hold and manage any land in Uganda vested in or acquired by the Government of Uganda in accordance with the provisions of this Constitution and shall have such other functions as may be prescribed by Parliament.” [Emphasis added].
From the submissions of both counsel and the laws relied upon as quoted above, I find two important issues for determination by this court. The first one is whether an order of attachment can be issued for enforcing payment against Government and if so, the second issue would be whether land registered in the name of the Uganda Land Commission is Government land which is immune to attachment.
As regards the first issue, section 19 (4) of the Government Proceedings Act is explicit on the matter and I would agree with the submissions of counsel for the applicants. I have also noted the submission of counsel for the respondent based on the authority of Attorney General v. Osotraco Ltd (supra). With due respect to counsel for the respondent, the facts of that case are distinguishable from the instant one in the following aspects. First of all the respondent in that case was the registered proprietor of the land in dispute. Secondly, it was section 15 (1) (b) of the Government Proceedings Act under consideration and not section 19 (4) which is in issue in this case. Thirdly, the issue was eviction of Government from the property of another person and not attachment of Government property as it is in this case.
Although some general principles were stated in Attorney General v. Osotraco Ltd(supra). I am of the considered view that each case should be decided on its distinct facts and circumstances which calls for a lot of caution in applying the principles so as to avoid overstretching them beyond what the court intended based on the facts and circumstances of that case.
In my considered view, the effect of section 15 (1) (b) that was considered in the Attorney General v Osotraco Ltd (supra) is not comparable to the effect of section 19 (4) of the Government Proceedings Act under consideration in this case. This is because unlike in that case where the aggrieved party had no other option for effective redress, in the instant case there are options for the respondent to enforce the Certificate of Order extracted under section 19 (c) of the Government Proceedings Act. For instance, the respondent can apply for a writ of mandamus against the Secretary to the Treasury to compel him to perform his statutory duty and pay the sum stated in the Certificate of Order as was observed by Madrama, J in Goodman Agencies Ltd & 3 others v Attorney General & another Miscellaneous Application No. 34 of 2011.
For the above reasons, I agree with the applicants’ submission that section 19 (4) which was never considered in Attorney General v Osotraco Ltd (supra) bars issuance of an order of attachment for enforcing payment against Government thereby answering the first issue in the affirmative.
As regards the 2nd issue, it is the applicants’ case that land which is subject of the impugned Order belongs to Government in accordance with Article 239 of the Constitution and section 49 of the Land Act. I agree with that position because it is quite clear from the above provisions that the 2nd applicant holds and manages land on behalf of the Government of Uganda. I do not therefore find valid the argument that land registered in the names of the 2nd applicant does not belong to Government.
In Kampala District Land Board & Another v. National Housing and Construction Corporation SCCA no. 2 of 2004 Odoki CJ (as he then was) while referring to the Uganda Land Commission observed that the main function of the Land Commission is to hold and manage any land vested in or acquired by the Government of Uganda.
In the circumstances, it is the firm view of this court that land registered in the name of the 2nd applicant is Government property which is protected by section 19 (4) of the Government Proceedings Act and I so find.
I have also found difficulty in appreciating the arguments of counsel for the respondent that section 19 of the Government Proceedings Act is in respect of enforcement against government but not attachment of government property. That argument in my view is self defeating especially in view of sub-section (4) of that section which expressly prohibits issuance out of any court of any order for enforcing payment by the Government of execution or attachment or process in the nature of an execution or attachment.
In view of my findings on both issues, this application is allowed and the Order in Miscellaneous Cause No. 486 of 2012 is set aside as it is barred by law.
For reason that the respondent was constrained to take the steps that gave rise to the Order set aside due to the failure by Government to pay it, I decline to award costs to the applicants. Consequently, each party shall bear its own costs.
I so order.
Dated this 9th day of July 2013
Hellen Obura
JUDGE
Ruling delivered in chambers at 3.00 pm in the presence of Ms. Imelda Adong holding brief for Mr. Philip Mwaka for the applicants and Mr. Richard Kabazi holding brief for Mr. Mohammed Mbabazi for the respondent.
JUDGE
09/07/13
