Abalema United Effort Limited v Uganda Land Commission (Misc Cause No. 122 of 2021) [2023] UGHCLD 33 (14 February 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

$M/C$ $/22/2021$ (LAND DIVISION)

ABALEMA UNITED EFFORT LTD ..................................

**VERSUS**

$\mathsf{S}$

# **UGANDA LAND COMMISSION..................................**

Before: Lady Justice Alexandra Nkonge

#### **RULING**

## Introduction:

This application seeks an order for judicial reliefs by way of a writ of mandamus;

Special damages in the sum of 10% per annum of *Ugx 170,000,000/=* from 27th June, 2019; 20 General damages; and costs.

The affidavit in support of the application is filed by Mr. Kizza Daniel. Briefly, that the applicant was granted lease over plot 175, Bombo Road LRV KCCA 77 Folio 1, by the respondent, Uganda Land Commission (ULC) effective 1st July, 2014.

He avers that due to disputes with one of its tenants, Mr. Patrick Baligasima, (the 3rd defendant under the main suit) and the ULC, the applicant filed a suit against them vide, HCCS No. 279 25 of 2016.

The case was decided on 27th June, 2019 during one of the sessions held by this court and specific orders were made which to date however have not been complied with.

# Representdtlon:

The applicants were represented by III/s Ownda Tl,nylnondl & Co. Adt ocates. As per alfidavit of service, the respondent (ULC) duly acknowledged service on 22nd October, 202 1 . However, no response was filed.

5 The applicant side filed submissions in writing as directed by court which I have taken into consideration in arriving at the decision.

# Conslderatlon oJ the qpDue@pl]:.

The remedy of mandamus which the applicant seeks is a creation of the Judlclal Revlew Appllcatlons, Rutes 3 (1) (a), 2 cnd 5 and from court' assessment, it is available when alternative procedures or more convenient remedies are missing, (ReJ: Mlcro Clrse Insurance Ltd us Uganda Insurance Commlsslon MA No. 37 OF 2OO9).

Counsel for the applicant cited the case of Xaslbo Joshuo us CorI{, I{;Lsslonc" of Customs, MA No. 44 of 2OO4, where it was declared that judicial review is concerned, not with the decision but the decision making process. Essentially the review involves an assessment of the manner

in which the decision is made; it is not an appeal. 15

> The jurisdiction is exercised in a supervisory m.rnner, not to vindicate rights as such, but to ensure that public powers are exercised in accordance with the basic principles of legality, fairness and rationality.

The applicant for an order of mandamus must show that it enjoyed a right, the right is specihed by the decree of court, a certificate of order against Government has been extracted and duly served on the respondents and that the respondents refused to honor the certificate of order by refusing to comply with the decree. ffntex Const 1actlon us Attorney General & Anor MA No, 737 ol 2013.) 20

As per the judgment of court in this instance delivered on 27th June, 2019 attached to the affrdavit in support of the application as Annetru"e B, the following orders were issued:

- 7. An order dlrectlng the commlssloner, Land Reglstrdtlon (7d defendant) to cqncel the lo'nd tltle ln the plqt^ttfs n'o'me; - 2. A decld.rdtlon thot the 4.h o.nd 6t^ delendants hqoe an lnterest ln the sult 30 land;

| | 3. An order dlrectlng the comnnlssloner, Land Reglstrdtlon (7d defendant) to reglster the tltle ln the names of the surr itlng orlglno.l dlsabled persons as tenants ln com'mon wlth a Gouernrne'rt encumbrance not to sq.le; | |----|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 5 | 4. Ang lltrther lease extenslon/reneual should be ln the na.mes o.f the origlnql members llsted ln the Judgment; | | 10 | 5. ?he pl(,tn'tttf together l/,]lth the rest ol the origlnql tnernbers shall refund Ugx 77O mtlllon/= to the 3d delendant; | | | 6. The annount ln 3 qboae sholl attract an lnterest of 7Oo/o per annurn lrom 72h August, 2O74, the date uhen the rnoneg thot ls relerred to as 'akasil'mo' utas pald to the platntlff; | | 15 | 7. A permanent injunction restraining the 3'd defendant from interfering Luith the original members' possession of the suit propertg; | | | 8. An order for uaconl possession to issue againsl the 3'd defendant afrer the Iull refund of Ugx 17O mllllott/=; | | 20 | 9, No orders to general damages; | | | 10. No orders to costs oifrhe sui, |

Following the delivery of the judgment, a decree of the above order was extracted on 31 July, 2019. lAn,ae:cture C.). 25

As a follow up subsequent to that decision, the deponent in this application who is also chairman of ll:le Abalema United EfforT atd together with the Secretary, one Kakeeto Gerald on 4rh August, 2019 wrote to their counsel requesting them to proceed with processing of the land title in the

30 names of their company, as decreed by court. ( Ref: Annexture Dr, Also attached to that letter was the list ofthe members'in whose names the title was to be issued, as this court had directed.

Annerture A is evidence that a certificate of title that had been issued for a term of 5 years, .u.e./ from 1"t July, 2014, in the applicant company's names. A lease was entered on l"t April, 2015, with ULC as lessor and the applicant as lessee.

The record also indicates that learned counsel had written to the Secretary ULC on sth August, 2019 notifying it about the 3orh June,2019 as the date on which the lease was due to expire. 35

The letter sought a renewal /extension of the lease to a full term of 99 years to facilitate development of the property. (Anftexf,ure B).

On 18rI October, 2019, the Ag Secretary, Mr. Robert Nyombi had written to the applicant's lawyers assuring them that the ULC would abide by the said order. (Ref. Annextu"e C).

- 5 By that same correspondence he had also informed them that the matter had been discussed in the ULC meeting that had been held on 21"1 and 22",rAugust, 2019 but was deferred to its next meeting, to give time to study the judgment and verify the true names of the original members who would be entitled to the renewed lease. ULC thereupon requested the applicants to avail it with the copies of the passport photographs and National Identity Cards. - The record further demonstrates that on 23,d October, 2019, in response to that request, through the applicant's counsel, the required documents as well as the Lc letters for two ofthe members who had no documents were availed to the ULC in confirmation oftheir residence or status. 10

However, no action was taken by the ULC, until Juty, 2020 when the Ag. Secretary of ULC, Mr. Benon Kigenyi, wrote to the Commissioner, land Registration indicating that the ULC under

Minute 13/2O2O (a)(87)}:.ad approved the extension ofthe lease held by the applicant for a period of 49 years. 15

The office ofthe Commissioner, Land Registration was in that letter directed to issue the title in the names of ULC and the applicant members individually appearing on the title and take into account the judgment decree as issued.

Counsel for the applicant upon learning about the decision on 27th October, 2020 however raised concerns that the ULC being the controlling authority and trustee of t}re land on behalf of Government could not be registered as proprietor on any certificate of title. 20

That in any case this was a variation of the orders of court as granted. The learned counsel therefore requested the ULC to review its decision on that score and to comply with the orders

expeditiously.

Previous to that, on 27th March, 2020 a letter had been received, upon request as advice to the ULC, from the office of the Solicitor General. This was entitled: Request lor lagdl opl^lon ln regatd to the ludgraent ln CftuIl Sult IVo. 279 of 2016 Abolemr: Untted Elfort Ltd vs Ugdnda Land Commlsslon and others.

By that letter which was addressed to the Secretary, ULC, the respondent was advised on how to go about executing the orders of court. The steps as advised were to: 30

- 1. request the existing original disabled persons ..... to furnish it with the names and details of all members that met the President. Due diligence should be conducted to ensure that the persons added other than those mentioned by court are not imposters. - 2. extend/renew the lease in the names of the original disabled members. - 3. include a clause in the lease extension deed preventing the original disabled persons from selling the land and put an encumbrance on the title. - 10

$\mathsf{S}$

The ULC upon obtaining the details of the plaintiffs whose names were to appear on the title, took no further action to follow the advice as given to ensure compliance with the orders, despite the fact that they had given assurances to the applicant counsel that they were ready to comply with the said orders.

- 15 The ULC did not in any case explain to this court why they did not comply with the orders. It is trite law that a party who fails to comply with a court order without proper explanation does so at his/her own peril. Whether unclear, null or irregular a party, it cannot afford or be permitted to disobey an order for as long as it remains undischarged. (see also: Attorney General vs Kiruhura District Local Government & 2 others HCMA No. 35 of 2012). - 20 The applicants in this case successfully had obtained orders which the ULC was mandated both by law and, by order of court, it was incumbent upon them to execute. The respondent by its failure to comply with the order stood in the way of the applicants enjoyment of the benefits of their judgment, four years after the judgment was delivered.

It is sad to note that the applicant who were successful in their case and who have obvious 25 challenges of mobility and therefore vulnerable have had to wait that long before enjoying the fruits of the judgment. It is unjustified and inexcusable also given the fact that a refund of *Ugx* **170,000,000/=** had to be paid by the applicant which also attracted interest of $10\%$ p. a from $12$ th August, 2014.

This application therefore succeeds; and the following orders of court are accordingly issued:

30 1. A writ of mandamus therefore issues in favor of the applicant and specifically against the Secretary of the ULC directing him to cause the renewal/extension of the lease as directed by court in Civil Suit No. 279 of 2016, within a period of 30 days after delivery of the ruling failing which he shall pay Ugx $50,000,000/=$ as damages for contempt of court orders.

- 2. The ULC shall pay the interests accrued to the $3rd$ defendant from the date when the payment was due to date. - 3. The $3^{rd}$ defendant shall immediately vacate the premises upon payment of the Ugx $170,000,000/$ = by the applicant; and shall be free to proceed against the ULC for any accrued/unpaid interest on that amount. - 4. The ULC shall pay costs of this application.

$\mathsf{S}$

1 so order.

Alexandra Nkonge Rugadya

15 Judge

14th February, 2023

Delivered by venci 1 Quilarge J. 14/2/2023.