Kamya v Kampala District Land Board & Another (Civil Appeal 6 of 2013) [2015] UGSC 127 (8 July 2015)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: KATUREEBE C. J., KISAAKYE, ARACH-AMOKO, JJSC; TSEKOOKO AND OKELLO, AG. JJSC

### CIVIL APPEAL NO. 06 OF 2013

#### **BETWEEN**

#### PAULO KAMYA.............. ......................................

#### AND

1. KAMPALA DISTRICT LAND BOARD

2. NAZARALI PANJWANI

Administrator of the Estate of late

.. RESPONDENTS

ALIRAZAK PANJWANI

Appeal from the judgment of the Court of Appeal at Kampala(Mukasa-Kikonyogo DCJ Mpagi-Bahigeine and Kavuma, JJA) dated 1st June, 2011 in Civil Appeal No.83 of 2006 arising from the decision of the High Court in Civil Suit No. 07 of 2005 by *(originality summons)*

#### JUDGMENT Of G. M. OKELLO, AG. JSC

This is a second appeal from the judgment of the Court of Appeal which confirmed the decision of the High Court in a Judicial Review. The Appellant and the 1st Respondent herein were the

appellants in the Cotrrt of Appeal. Thc first respondent chose not to appeal against the decision of the Court of Appeal and the appellant included it in this appeal as the first respondent.

## Background facts

The background facts to this appeal may be summarised as follows: On 4th November 1955, Razak Nazarali Panjwani (deceased) was registered as Proprietor of the lease comprised in LVR 99 Fotio 22 Plot No. 2 Makerere road (Suit property). The lease was for 49 years from the l"t of January, 1929 to expire on the 31"t day of December 1977.

ln 7972, the said Ali Razak Nazarali Punjawani was expelled from Uganda along with other Asians by the Idi Amin Regime. He migrated to Canada where he passed away on the 26,t June 1974. Upon that expulsion, his said propei'ty (suit property) was taken over and managed by the Departed Asians Properties Custodian Board. On the sth May 1995, Sadrudin Alirazak, Punjwani, the son of the deceased and 2nd respondent was granted, by the High Court of Uganda in Kampala, Letters of Administration of the estate of 'the deceased. On the 27th of July 1995 the saicl Sadrudin . A. Punjwani obtained a Certificate of repossession of the suit property. The Certificate u,as, on 19th March 1999, registered under instrument No.300354 and by the operation of Expropriated Properties (Repossession and Disposal) Regulations, SI No. 6 of

1983, the lease of the suit property was extended for 6 years to expire on 27th July 2OO l.

Through his agent, Sadrudir-r Alirazak punjwani carried out a search in the Land Registry in Kampala whele he discovered a Power of Attorney dated 10th April 1999 purportedly given by his father who had died in 1974 to one Bazilio Lukyamuzi granting the latter powers over the suit property. The search further revealecl an application dated 13th December 2OO2 drawn by ll/s Kityo & co. Advocates by which t}re deceased Ali Razak Nazarali pu'jwani of P. O. Box 15075 Kampa-la, had purportedly applied for a special certificate of title to the suit property. The said deceasecl had also purportediy swore a statutory declaration dated 13th December 2OO2 in support of the appiication. In thc Statutory Declaration he alleged loss of the original certificate ol title to the suit property and that his diligent search for the same yielded no result. o, the 1"t April 2OO4 tll.e special certificate of title was issued..

On the 23'd June, 2OO4, Bazilio Lukyamuzi acting on the said Power of Attorney dated lOth April 1999, purportediy sold off the suit property to Paulo Kamya, the appellant, who on 30th June 2004 had his name entcred on the register as the proprietor of the suit property. However, when the 2n.t respondent petitioned the Registrar of Titles, the special certificate of title and the entry of the

names of Paulo Kamya on the Register as the proprietor o[ the suit property were cancelled as it became clear to the Registrar of Titles that the lease had expired.

On the 24il. August 2OO4, the 2".1 respondent through his agent, Fourways Propert5z Services Ltd (FPSL), applied to the l"t respondent for renewal/extension of the lease o[ the suit property. In the application, the 2na respondent brought to the atte,tion of the l"t respondent the attempted fraud by paulo Kamya to acquire atrd have the suit property registered in his names. On llft March 2005, the 1"t respondent communicated its decision to the 2"d respondent declining the latter's application citing as his grouncl failure to maintain the existing structure thereon in acceptable standard.

Aggrieved by that decision which he complained denied him opportunity to be heard on the charge of failure tc maintain the structure in acceptable standard, the 2nd respondent through his lawyer sought and obtained from the High Court leave to apply for a Judicial Review. He a\_lso applied in the meantime, lbr a, order staying all actions and dealings by the appellant and the l"t respondent regarding the suit propcrty until final disposal of the application for Judicia-l Revieq..

On l6th March 2OO5, the I,iigh Court rnacle an order staying all actions and dealings by the appellant ancl the l"t respondent regarding the suit property until hnat disposal of the application for Judicial Review.

On 22"a March 20O5, the l"t respondent formally offered to the appellant a lease of the suit property r.vith detailed terms regarding the period of the lease and the fees payable. On 14rh July 2005, the 2"d respondent's tenants in the suit property were evicted and the building on the suit proper-ty clemolished.

on 2l"t April 2o06. the }Iigh court deliverecl its Ruling on the applicatiotr for Judicial Revierv. In the rr.rling, the Higir court founcl that the 2"d respondent had made otrt a case for- grant of certiorari quashing the decision of the 1"t respondent dated 11rh March 20o5 in which it granted a lease over the suit property to the appellant and denied the 2,,d respondent a renerval of the lease over the suit prope.ty. In the High cotrrt's view, that decision was taken with procedural impropriety and irrationality. The High court therefore quashed the decision and declinecl to remit the maLter to the 1"t respondent for consideration and decision. His reason for that decline was based on the peculiar facts of the case. He instead issued an order of mandamus directing the l"t respondent to grant to the 2"d respondent a renewal of the lease

over the suit property on such terms and conditiolts as those that had been given to the appellant in the lease offer dated 22"a March 2005.

Dissatisfied with the above decision and orders of the High Court, the appellant and the l"t respondent herein appealed to the Court of Appeal vide Civil Appeal No. 83 of 2006 setting out six grounds which were summarised into the lbllowing five issues:-

1." Whether the l"t appellant allowed the respondent to occupy and use the suit property after expiration ofthe lease.

2. Whether the respondent as Administrator of the estate of Alirazak Nazarali Punjwani could competently apply for a grant of a lease of the suit property as part of the estate of the deceased.

3. Whether the l"t appellant :nade an irrational decision granting to the 2nd appellant a lease over the suit property. ).n

4. Whether the l"t appellant exhibited bias in making a grant to the 2"d appellant.

5. Whether the learned Judge could order the 1"t appellant to grant lease to the respondent or should have remitted the matter to the 1't appellant for reconsideration.,,

The Court of Appeai heitld the trppeal and clelivcred its judgment on the l"tJune 20 11 in which it answered arll the above issues in the affirmative thus confirming the decision of the High Court in the Judicial Review, hence this second appeal to this Court.

## GROUIIDS OF. APPEAL

The Memorandum of this appeal sets basically tlvo grounds with an alternative as follows:-

1. " The learned trial Judges erred in law in holding that the application for grant of lease of the suit land was competent/valid. (sic)

2. The learned Court of Appeal Judges erred in law in failing to lind that the trial judge had no jurisdiction to order the 1"t respondent(KDlB) to grant a lease of the suit property to the 2'd respondent."

On the above grounds, the appellant asked this Court for the following orders:-

1." that the appeal be allowed and the decision of the lower Court be quashed and set aside.

2. that the decision of the L't respondent (KDLts) Kampala District Land Board, the subject of review, be confirmed or in

the alternative, the matter be remitted to the l"t (KDLB) for reconsideration in accordance with findings. respondent the Court's

3. that the respondent pays the costs of the Appeal in this Court and in the Courts below."

## Representation

At the hearing of t"his appeal, the appeliant was represented by Mr. John Matovu while Mr. Salim Makeera appeared for the responder:ts. IVIr. Mohamrned Thobani who holds a power of Attorney from the 2"d respondent was in Court. The appellant too was in Court. Counsel for both parties filed written submissions.

## ARGUMENTS OF COUNSEL

Both Counsel in their respective written submissions argued the grounds separately starting with ground No. 1. This ground was couched thus:-

" The learned trial judge erred in law in holding that the application for the grant ofthe lease of the suit land to the 2"d respondent was competent/vaIid,,'

# Counsel for the Appellant

Learned Counsel for the appellant pointed out that at page 179 paragraph 23 of the Record of Appeal, the Court of Appeal confirmed the finding of the trial judge that the application for renewal/extension of the lease of the suit lancl to the 2"d

respondent \,i,as competent/r,alid. Counsel contencls that that hnding was an error in law and fact. He adopted the appellaut,s submissions in the lower courts on this issue where basically two reasons were advanced in support of the view as follows:-

1) that the application dated 24th August 20o4 was submittecl on behalf of the 2"d respondent by Fourutags propertg seruices Ltc) which had no Powers of Attorney from the 2nd responclent.

2) that by the time the application was submitted, the lease over the suit land had long expired sometime in 20O1 and no longer formed part of the estate of the late Nazarali punjwani. tIe argr-red that in that circumstance, neither the 2"d respondent as administrator of the estate of his late father nor any of his agents could validly apply for renewal/extension of the leerse, more so as the 2"d respondent had not applied lor succession to the lcasc under section 134 (1) of the Registration of the Act (RTA) follorving the death of his late father. He reasoned that to do so would tantamount to seeking a €Jrant for a dead person rvhich our law does not permit. He prayed rhal this grouncl succeeds.

In the alternative learned Counsel challenged the trial judges finding which were confinned by the Court of Appeal. The finding was that therc had been procedural impropriety ancl irrationality in the process of the decision by the 1"t respondent (KDLB) granting a lease over the suit land to the appellant Counsei

contends that that linding was crroneous. He adopted his submissions in the lower Courts on this issue.

In the Court of Appeal this issue \\.'as covered in issue No. 3 couched thus:-" Whether the l"t appellant made irrational decision to grant a lease on the suit property', (page 222 RTAI.

Learned Counsel contended that there was no procedural impropriety and irrationality in the process of the decision by the 1"'respondent granting a lease over the suit land to the appellant. He argued that firstly, there had been only one competent application before the 1"t respondent. Secondly, the decision and the procedure that led to it were backed by Section 54 (6) & (7) of the Larnd Act. Thirdly, that the matter considered by the first respondent in reaching that decision was expert opinion on the status of the suit property provided by technical staff in the l,and office. He prayed that this Court finds that there was no procedural impropriety and irrationality ire the process of the decision by the 1"t respondent to grant a lease over the suit property to the appellant.

## Counsel for the Respondents

## Preliminary issue

Learned Counsel for the respondent raised as a preliminary issue the inclusion of KDLB in this appeal as a respondent. Counsel contends that the procedure is illegal and against the rules. He, however, did not cite any relevant rules which that procedure

ID violateci. In his view, it u.as not legitimate for the appellant to include KDLB as a respondent ancl cloes not state any grounds in the Memorandum of Appeal against it. He submitted that as KDLB accepted the judgment of the Court of Appeal, it was duly bound to implement the decision. He prayed Court to uphold that judgment.

### GEQUND 1

On ground 1, learned Counsel supported the findings of the lolver Courts. He adopted the submissions of Counsel for the 2na respondent in the lower Court on the issue of competence 6f thg f:j,r respondent, as the administrator of the estate of his father, late Nazarali Punjwani, to apply for renerval of the lease over the suir property. In the lower Court, Mr Kalibberia who r-epresented ffi6 lnct respondent contended that the 2nd respondent had applied for renewal of the lease in two capacities:- J.) as beneficiary ancl 2) as the heir. He argued that though the 2nc respondent as the administrator of the estate of his father had not been on the register in accordance with Section 134 (1) of the RTA, did not mean that no legitimate expectation had been created in him. In Counse[,s view, the application could have been ciealt with in either of the two capacities and that such an application did not have to be made personally. He submitted that by KDLB accepting the 2"d respond.ent's application without raising the issue of capacity, a legitimate expectation had been created. He pointed out that under our administrative law, KDLB as a public body had a duty to act

fairly which enables an aggrieved party to invoke jurdiciar revie."v if he can show that he had a reasonable expectation of sorne occurance or action preceding the decision complainecl of anci that that reasonable expectation had not in the event been fulfilled. He citccl tl-rc case of Counscl for Civil Service Unions and others Vs Minister of Civil Service I 19841 3 ALL ER 936 at 950 (Ch. D 935).

He concluded that in the instant case, KDLB had not rejected the 2"d responclent's application on ground of his capacity but rather on the issue of maintenance of the building on the suit lanci. He prayed that this Court finds that the application of the 2"d respondent was competent/valid.

## ALTERNATIVE ISSUE

The alternative issue related to the lindings of the rower courts that there had been procedural impropriety ancl irrationaiity in the process of KDLB's impugned decision granting the appellant a lease orrer the suit property. on this issr-re, Learnecl counsel for the respondent reiterated Counsel for the 2"d respondent,s submissions in the lower Court at page 2O9 to 21O (ROA) on this ground. He submitted that the learned justices of the Court of Appeal properly addressed themselves to the issue of procedural impropriety and irrationality. According t, Counsel, the lcarned justices of the court of Appeal rightly pointed out firstly that since there were two competing interests KDLB had a duty to act fairly as

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required by Articles 2s (1) and 42 of the constitution. He explainccl that to do so KDLB needed to hear t]ne 2"a respondent on the issue of citizenship and the issue of the alleged failure to maintain thc building on the suit land to acceptable standard to comply with the rules of \*XKr justice. Learned counsel submitted that this had not been done. The 2"d respondent had been condemned unheard. In counsel's view, KDLB had in that regard acted irrationally and with bias against the 2"d respondent.

Secondly, Counsel pointed out that the 2"d respond.ent had applied for renewal of the lease on the 24th August 2004 before thc application of the appellant which was received at the office of KBLB on l2/4/2OO5. He stated that despite that, KDLB made no inquiries about the status of the building on the suit land until February 2005 on a tip off. Learned Counsel argued that by acting on a tip off, meant that the decision to inspect the suit premises had not been that of KDLB.

Thirdly, that there was evidence on record that the appellant had attempted to transfer the suit property into his names fraudulently through Bazilio Lukyamuzi. The evidence, Counsel stated, shows that the said Bazilio Lukyamuzihad forged a polver of attorney allegedly issued on lo/ro/2oo4 by Alirazak Nazarali Punjwani. Yet there is evidence showing that the saicl t\lirazak Nazarali Punjwani had Iong died on the 26th June 1974. The

appellant himself participated in thc acquisition of the forged Certificate of Title to the suit property.

Despite the fact that the above illegal acts of the appellant been brought to the attention of KDLB, the latter allorved appellant's application which was receivecl after that of the respondent and offered to the appellant the lease of the property disregarding the fact that the 2nd respondent was possession and managernent of the same which his late father developed since 1929. had the )r'td, suit in had

Fourthly, the evidence further shows that the offer of the lease was communicated to the api:cllant on 1ll3l2oo5 before KDLB had approved the offerat its mceting of 1grh March 2005 under. Minute No. KBLB 4/4/2OO5. In Counsel's view, that meant that KDLB considered and approved the application of the appellant after it had alread5'granted him the lease offer.

Learned counsel submitted that in light of the above, the learned justices of the court of Appeal were justified in hording that KDLB had not acted fairly in allowing the appellant's application over that of the 2"d respondent. He prayed that this court linds that there had been procedural impropriety and irrationality in the process of

KDLB's decision granting the lezrse of the suit property to the appellant and that this ground too should fai1.

### RE. IOINDER

Learned Counsel for the appellant made a rejoinder. On the preliminary issue, Counsel submitted that the l"t respondent was joined in this appeal as a party necessa-ry to the decision on the appeal.

On ground I and the alternative ground., Counsel dicl not adcl anything new but reiterated his earlier submissions.

# CONSIDERATION OF COUNSEL'S ARGIJMENTS

## ERELIMINARY ISSTJE

Learnecl counsel for the respondent rzrised as a preliminary issue the inclusion of the KDLB as a responclent in this appeal. I think it is appropriate to deal with this issue at this stage.

Learned counsei contends that inclusion of I(DLB as a respondent in this appeal when it had accepted the decision of the court of Appeal from which this appeal arose is illegal and against the rule. He did not cite any authority or any relevant rulcs to substantiate his view of illegality and violation of the rure. There is no specific rule of the Rules of this court which prescribes who should be a

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responclent in an erppeal. But, looking at Rulc72 (3) ancl 74 (ll ol the Rules of this court, I cannot say that naming as a respolldent a person who is directly affected by the appeal, particularly one who had taken part in the proceedings in the High court or court of Appeal from the appeal arose is illegal or against the rule. An intendecl appellant is free to name as a respondent a person who is directly affected by the appeal, particularly one who took part in the proceedings in the High Court or. the Court of Appeal from which the appeal in this court arose. He does so at the risk of paying costs to such a person for dragging him/her tr: Court if he the intended appellant loses the appeal.

I, therefore hold that the inclusion of KDLB as a respondent i. this appeal is not illegal nor does it violate any rule of this colrrt. KDLB had taken part in the proceedi,gs i. the High court a,d court of Appeal from which this appeal arose. This prerirnini,y issue is accordingly dismissed.

#### GITOUND 1

on this ground, learned counsel for the appellant contends that the application of the 2"d respondent for renewal of the lease over the suit land was incompetent and invalid. counsel for the respondent did not agree. He held the view that the application nas competent and valid.

Learned Justice Mpagi-Bahigcine, Deputy then was, who u,rote the lead judgnrent Chief Justice, as she u,ith which the members of the Court of Appeal on the panel agreed, dealt this issue as follows: other with

# "In view of the clear authorities cited by Counsel, I am unable to fault the judge,s finding that the application was competent and that the appellant had a legitimate expectation to be treated fairly. I therefore find no merit in issue No. 2,,.

The authority cited by Counsel on this issue 'i,hich the learnecl Deputy Cl-ricf Justice refen'ed to rvars Council of Civil Servic Unions and Others Vs Milister of Civil Service ( 19841 3 ALL ER 936 at 95o. In that case, there had long been established a practice at the Government Commurrication Head euarters (GCFIe) of consultation between the managernent and the Unions about important alterations in the terms ancl conditions of employment of the staff. On 22"d December 1983, the Nlinister for the Civil service issued an oral instruction to the effect that the terms anc.l conditions of Civil Servants at GCHe would be revised so as to exclude membership of any trade union other than a departmental staff association approved by the director of GCHe. That instruction which was issued vvithout prior consultation with the staff at GCHQ, was issued pursuant to the Minister,s power uncler article 4 of the Civil Service Order in Council l9E2 to give instructions for.... controlling the conduct of the Service, and providing for.... the conditions of Service. The Order was made

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under royal prerogative. The appellant and others including Civil Servants employed at GCHQ, applied for judicial review of the Minster's instruction seeking inter alia, a declaration that it was invalid because the Minister had acted unfairly in removing their fundamental right to belong to trade union without consideration.

The Judge granted the application on the ground that the Minister ought to have consulted the staff before issuing the instruction. The Minister appealed to the Court of Appeal of the United Kingdom contending that:-

*i) the prerogative powers and instructions given under a delegated* power emanating from prerogative, was discretionary and not open to review by the Courts, and

*ii) the requirement of national security overrode any duty which the* Minister otherwise had to consult the staff. Affidavit evidence was filed on behalf of the Minister to the effect that in her view there had been a real risk that prior consultation would occasion the sort of disruption at GCHQ which threatened national security and which *was the very thing the instruction was intended to avoid.*

The Court of Appeal heard the appeal and allowed it on the grounds of national security. The appellants appealed to the House of Lords.

# In allowing the appeal, the Housc of Lords held inter alia that:-

i)" An aggrieved person was entitled to invoke judicial review if he showed that a decision of a public authority affects him by depriving him of some benefits or advantage which in the past he had been permitted to enjoy, and which he could legitimately expect to be permitted to continue to enjoy either until he was given reasons for its withdrarval and the opportunity to comment on those reasons or because he had received an assurance that it would not be withdrarvn before he had been given the opportunity of making a representation against the withdrawal. The appellants, legitimate expectations arising from the existence of the regular practice of consultation which the appellants could reasonably enpect to continue gave rise to an irnplied limitation on the Minister's exercise of the power containeri in article 4 of the 1982 Order, namely, an obligation to act fairly by consulting the GCHe staff before withdrawing the benefit of trade union membership. The Minister's failure to consult prirna facie entitled the appellants to judicial review of the I/Iinister,s instruction. "

It is clear from the above case that judicial review is a urechanism by which actions or decisions o[ a statutory or public body (decision-making authority) in tl-re exercise of its functions are controlled to ensure that the decision-making authority acts within its power and complies with its duty to act fairly. The decision in

Council Civil Service Unions and Othcrs (su ral that to qualify for judicial review, the decision statutory or public bocly and that it has affected body ofpersons either by further sho',r,s must be of a some person or

a) altering the rights or obligations which are enforceable by or against that person or body ofpersons inapiuate latu; or

b) bA depiuing that person or aduantag e tuhich eithe r ; bodg of persons of beneJit or

i) he or theg had in the past had been pennitted by the d.ecisionmaking authoitg or on its behctlf to enjog and which he or they can legitimatelg expect to be permitted to enjog until that decisionmaking authoity has communicated to him or to them some rational ground for withdrawing it and he has or they haue been giuen an apportunity to comment on the reeson or

ii) he has or theg haue receiued an assurance from the d.ecisionmaking authoitg that it would not be uithdrawn uithout fi.rst giuing him or them an opportunitg of aduancing reason for conten.ding that the benefit or aduantage should be withdrawn.

Legitimate expectation referred to above always relates to a benefit or privilege to which the claimant has no right in private larv. It may arise either from an express promise by or on behalf of the decision-making authority or from the existence of an established practice which the claimant can reasonably expect to continue.

## (O'ReilleyVs Mackman (1982) S ALL ER 1124 at 1126)

The test of legitimate expectation is whether the practice in question is well estabiished to be unfair or inconsistent with good administration for the government to depart from the practice in the case at hand.

In the instant case, the trial judge found as a fact that the 2nd respondent had continued to possess and manage the suit property for three years after the expiry of its lease in 200 i, without any objection from KDLB. The court of Appeal also confirrned that finding of fact. As a second appellate court, this court can only clepart from concurrent findings of facts by the lower courts where there is special circumstance to justify it to do so. This principle was stated by this Court in Kifamunte Henrv Vs Usanda Cr. Civil Appeal No O9 of2OOo SCU). Appeal No. 1O of 1997 (EgU) arrrl Maddumpa Vs Wildorce Kaluse,

I find no special circumstance irr the instant case to justify departure from that concurrent finding of fact by the lower courts. There is an affidavit evidence of Mohamood Nodrdin Thobani u'hich was fiIed to support the appiication for juclicial review which supports the finding.

Frorn that finding, bolh thc l-ligh Court :rnd the Court of Appeal while applying the principle of legitimate cxpectation enunciated in thc case of Council of Civil Service Unions and Others (Supra) deduced, rightly in my view, that the continued possession and management of the suit property by the 2"d respondent after the expiry of its lease, without any objection lrom I(DLB, tantamounted to KDLB permitting the 2"d respondent to continue to possess and manage the suit property. This permission created in the 2"d respondent legitimate expectation that his benefit of possessing and managing the suit property rvould nct be rvithdrar.r'n without first being given a hearing and opportunity to comment on the reason for withdrawal. That legitimate expectation entitled the 2"d respondent as heir, beneficiary and sitting tenant to validly apply for renewal of the lease.

Learned Counsel for the appellant had argued in the lower Courts which arguments he adopted, in this Court, that because the 2rrd respondent had failed to register hi.s Letters of Administration of the estate of his late father under Sectionl34 (1) of the RTA, and, because the lease had already expired and the suit property no longer formed part of the estate of his late father, neither the 2nd respondent nor any of his agents could validly apply for renewal of the lease.

I agree with the los,cr Courts that this argumenr" is untenable. The entitlement created in the 2n,r respondent by the legitimate expectation was not dependent on registration of the 2"d respondent's Letters of administration under Section 134 (l)of the RTA nor on the suit property forming part of the estate of the late father of the 2"d respondent. As pointed out earlier in this judgment, legitimate expectation relates to a benefit or privilege in which the claimant has no right in private law. Legitimate expectation in the instant case was created in the 2"d respondent when KDLB by conduct permitted the second respondent lvho was heir and sitting tenant, to continue to enjoy lhe benefit of possessing and managing the suit property for three years after the expiry of its lease. It is an established practice in this country for a sitting tenant to be given the first option of renewing his lease or tenancy. This led the 2"a responclent to legitimately expect that his privilege of possessing the suit property would not be withdrawn before he was given a hearing on the reason for withdrawal and an opportunity to comment on the reason. The legitimate expectatiou entitled the 2n,i respondent, as heir and sitting tenant in the suit property to apply for the renewal of its lease.

Learned Counsel for the appellant further argued that because M/s Fourways Propert5r Service Ltd which submitted the application on behalf of the 2"d respondent, had no power of attorney from the 2".1 respondent, the application was incompetent. With r.espect, I do not

accept that argument as there is no law rvhich restricts such an application to be madc only personally by the applica.t. I thus hold that the application of the 2"d .espondent submitted on his behalf by M/s Fourways Property Services Ltd on 24th August 20O4 was competent and valid. Ground I therefore fails.

## ALTERNATIVE GROUND

This now leads me to consider couched thus: the alternative ground whicli was

## "The learned trial judge erred in law in holding that there rvas procedural impropriety and irrationality.,,

Appellant's complaint in this alternative ground was against the finding of the trial court which the cour.t of Appeal confirnrecl that there had been procedural imprcpriety irn<i irrationality in the process of the decision of the i(DLB clated llrh March 2oo5 granting a lease of the suit property to the appellant and rejecting the 2nd respondent's application for renewal of the lease.

As I indicated earlier in this judgment, whe, discussing grouncil, procedural impropriety and irrationality are two of the three heads for granting judicial review. This is because Statutory or public bodies like KDLB are under a duty to act reasonably and fairly in the exercise of their functions. See Articles 2g (1) and,42 of the constitution of this country. where in the exercise of its function a statutory or Public body makes a decision rvhich is outrageous in

its defiance of logic or acceptable r,oral standarcls, that no sensible person who had directed his mi,cl to the question to be decided could not arrive at it, s\*ch a clccision can be challenged in a judicial review for irrationality. similarly, where in the discharge of its functions a statutory or public body flails to observe the rules of natural justice or fails to act with procedural fairness towards the person who will be affected by its decision, or fails to observe the procedural rules that are laid down by the legislative instr.ument which conferred its jurisdiction, the decision that follorved will be susceptible to Judicial Review for procedural impropriety even where such a failure does not involve any denial of the rule of natural justice.

The imposing question here is, were the lower Courts justified in making the impugned findings?

In arriving at his impugned findings, the learned trial judge considered the arguments of cotrnsel of both parties, authorities cited, the relevant laws, affidavit evidence of Mohamood Noordin Thobani, filed in support of the application for the judiciar review and the affidavits evidence of Moses Byaruhanga, Acting Chairman of KDLB and of Paulo Kamya, the appellant herein all fired in opposition to the application. He considered all these vis-a- vis the process of the impugned clecision ol I(DLB dated 1l-3-2005. KDLB gave failure by the 2"d respondent to maintain the building on the suit property to acceptable standards as its reason for

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rejecting the 2".1 the appellant. respondent's application in preference to that of

Upon consideration of the materials judge found that: before him, the learned trial

1) There were two competing applications for lease of the suit property before KDLB:-

a) One for the 2"d responclent rvhich r,vas clar.ed 24/g/2OO4. and

b) The otlrer for the appellant rvhich was clzrtecl 1A/ll/2OO4.

2) There were acts of the appell.,t wtro attemptecl to fraudulently acquire the suit land thror.rgh onc Bazjlio Ltrkyarmuzi:\_

i) Bazilio Lukyamuzi hrLd forged a l)owcr of attorney ciateci lorh April 1999 purportedly given to hirn by 1|i6 lnrr i.csponclent,s firther ivho had died on26-6-1974.

ii) M/s Kityo and Co. Advocates rvho hacl been r.v,rking ibr r-he appellant had on r3/r2/2ooz appliecl for a special certiircate of title of the suit property purportedly on the instruction of the 2.d respondent's deceased's father.

iii) The special certificate oI title ,,,vas obtained

iv) with the forged power of attorney and special certificatc of title secured, the said Bazilio Luicyamuzi entered into a sale agreement dated 2/6/2oo4 with Paulo Kamya whereby Bazirio Lurgramuzi s.ld

the suit property to Paulo Kamya, the appellant, who with knowledge of the 2"d respondent's interests, had his name entered on the Register as Proprietor of the suit land.

v) On the 2nd respondent's petition, the special certificate and entry of Paulo Kamya's nanne on the register as proprietor lvere cancelled when it became clear to the Registrar of Titles that the lease of the suit land had actually expired.

vi) The 2"d respondent was at the time in possession and managing the suit property.

vii)All the above facts were brought to the attention of the KDLB.

3. Despite the above, KDLB allowed the appellant,s application granting him a lease over the suit property instead of the 2na respondent as the heir and sitting tenant who had been in possession. These circumstances rendered the decisior-r irrational and bias.

4. The affidavit evidence of Moses Lwanyaga revealed the second reason for KDLB rejecting the 2",1 respondent's application in preference to the appellant's as citizenship. That the 2"d respondent was not a citizen of Uganda while the appellant is..

5. The 2"d respondent had not been afforded opportunity to be heard on the charge of failure to maintain thc btrilding on tire suit land and also on the issue of citizenship. He had been condemned by KDLB unheard in disregard to the rule of natural justice contrary to article 28 (1) and 42 of the Constitution of this country.

2:7

From the above findings the learned trial judge found that the 2"a respondent had made out a case for judicial review which he granted on grounds of procedural impropriety, bias and irrationality.

In the Court of Appeal, Hon Mpagi-Bahigeine, Deputy Chief Justice as she then was, in her lead judgment, referred to:-

1) Failure by KDLB to notify the 2nd respondent to respond the charge and adverse report on the status of the building on the suit property.

2) Preferencc of tl-re appellirnt ovcr the 2,,c r-csponclcnt rrn ground of citizenship;

3) Failure to consider the issue or the alleged fraudulent conduct of the appellant who purported to be registerecl as proprietor of the suit property from Bazilio Lukyamuzi rvho had forged a power of attorney;

4) Allowing the appellant's the 2na respondent's possession, management concluded thus: application in disregard to the fact that application was first and he was in and use of the suit property and

"[t is my considered opinion that the l"t appellant was biased against the respondent. I so find.,,

I am unable to fault ttrc lo'n'er courts in their impugrreci fir-rclings firstly, because there is sr-rfficient e viclence on recorci to establish failure by KDLB to give the 2"d respondcnt a hear.ing on the charge of failure to maintain the building on the suit property and on the issue of citizenship which factors influenced KDLB,s decision to reject the 2nd respondent's application. That failure amounted to a failure on the part of I(DLB in its duty to act fairly which amounts to procedural impropriety.

Secondly, allowing the appellant's appiication and granting him a lease of the suit property in disregard first of the conduct of the appellant regarding the alleged fraudulent attempt to acquire the suit property, and, secondly the fact that the 2"d responclent,s application had been first and he was in possession, and management of th<: suit land ren<iered the decision bias iand irrational.

The argument by Cor-rnsel for the appellant that the decision and the procedure that led to it were backed by Section 59 (6) & (7) of the Land Act and that the matter considered by KDLB in reaching that decision was expert opinion on the status of the suit property provided by technical staff in the Land office is untenable.

2rl

while I accept that section sr 17) of the Land Act provides flor technical services to KDLB to bc provided by Land office, it does not support failure by I(DLB to observe irs duty to act fairly. Section 57 (6) & (7) of the Land Act does not override Article 2s (l) and 42 of the constitution of this country which enjoins statutory or Public bodies like KDLB to act fairly in exercise of their functions. This entails obseryance of the rules of natural justice,

I would thus uphold the iindings of the lower courts that there had bee, procedural impropriety, bias zrnd irrationality in the process of I(DLB's decision of rl/3/2o05 relating to the suit property. The alternative ground therefore also fails.

i now turn to consider the next anci fi,al gr'und which is grouncl 2. It was framed as follows:-

" The learned Court of Appeal jrrdges erred in law in failing find that the trial judge had no jurisdiction to order the respondent KDLB to grant a lease of the suit property to 2"d respondent," to 1"t the

Learned counsel fo' the appellant contends that the High court has no powers in judicial review to substitr-rte its decision for that of the Tribunal or Statutory body. To d.o so would be usurping the

3c powers of the Statutory body, he argued. IJe cited Baldwin and Others lL964tAC 4o: Chicf of Constables Btdse Yc of North Wales Police Vs EVans (1982) 1WLR llSS to support that vie,,v. He submitted that the order of the learned trial judge that a lease of the suit property be granted to the 2ud respondent was ultra vires the powers of the High court in judicial review ancl a clea;. case of usurpation of the powers of KDLB.

He submitted that the learned trial judge exceeded his porvers. He should have, after quashing the decision which he found had been wrongly reached, remitted the matter to KDLB for reconsideration and decision in accordance with the law ancl procedure. He relied on Civil Procedure (Amendment) . Judicial Rcview Rules, SI 75 of 2OO3, rule 1O (a) to support rhar vierv

He argued that the said Order could not be said to be an order o[ Mandamus because Mandamus cannot issue rvhere there is no Statutory duty to perform an act. I{e reiied crn Refletcher (l97Ol 2 ALL ER 527.

He criticized invocation of article 126 (21 (el of the constitution because that was against the spirit of that provision. He contended that that article does not confer jurisdiction on the High Court to make an order of Mandamus, and that the article

cannot be invoked in a case rvhere thc Court hacl no jurrisdiction in the mirttcr. Hc relied on Zaabwe Vs Orient Bank and 3 Others Civil Appeal No. 4 of 2006 lSCUl. He srrbmittcd that in thc instant case, both the Lands Act 1998 and the Judicature Act Cap l3 Laws of Uganda limit the jurisdiction of the High Court in judicial review. He prayed that this ground succeeds.

## Qorlnsel for the Respondent

In his written submissions Mr. Makeera supported the fi.ndings of the lower Courts. He contended that the High Court had powers to make the orders the trial judge made. fle cited Article 139 (1) of the Constitution which confers on the High Court unlimited original jurisdiction in all matters and such appellate and other jurisdictions as may be conferred on it by Constitution and other law. He also referred to Section la (1) of theJudicature Act which is virtually identical to Articie 139 (1) of the Constitution. He further referred to Section 33 of the .-Iudicature Act which grants the High Court powers to grant absolutely or at its discretion 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 matters in controversy between the parties may be completely and finally determined to avoid multiplication of legal proceedings over any of those matters.

Learned Counsel further referred to Section 36 (1) (a) of Judicature Act which confers on the High Court jurisdiction to make prerogative order of Mandamus where any act is required to be

performed by a public body. He conte,ded that rule l0 (4) of the civil Procedure (Amendment) (Judicial Review) Rures SI 75 of 2005 gives the High court discretionar;r porver to remit the matter to the lower court or public body after EDE"g the decision of that body. He supported the Court of Appeal,s decision that in the circumstances of this case, the learned trial judge properly exercised his discretion not to remit the matter to KDLB. He prayed that this ground should fail.

## CONSIDERAT ION OF COUNSEL ARGUMENTS

making in the matter. in Chief Constables of llorth trVales Police (supra) cited by counsel for the appellant, Lorcl Hailsham rvhile discussing the intention behind judicial review said:- Upon a careful consideration of the above arguments of counsei, the imposing question to answer is whether the High court has powers in judicial review to substitute its decision for that of the Statutory or Public body properly charged rvith power of decisic.-

" rt is not intended to take from those authorities the porvers and discretions properly created in them by law and to substitute the courts as the bodies making the decisions. rt is intended to see that the relevant authorities use thcir powers in a proper manner.,t

The learned law lord went on to say:-

" The purpose of individual receives judicial review is to fair treatment, and not ensure that the to ensure that the

authority, after according fair treatment, reaches on a nratter which it is authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court.,'

The above observations, which are persuasive, appear to indjcate that in judicial review, the Court must concern itself with the manner in which the impugned decision was reached rather than with the decision itself. Its role is to ensure that the decisionmaking authorit5r exercises its powers in a proper manner as to give the individuals to be affected by its decision fair treatrnent. It should not concern itself with the con'ectness, in Court's view, of the decision after the authority had accorded to the individuals fair treatment. I accept those expressions as the correct statemcnt of the law of Judicial Review. Rule 1O (4) of the Civil Proceclure (Amendment) (Judicial Review) Rules, SI 75 of 2OO3 provicies thus:

" Where the relief sought is an order of certiorari and the High Court is satisfied that there are grounds for quashin6i the decision to which the application relates, the Court nqay in addition to quashine the decision , remit the matter to the Iower Court , tribunal or authoritv concerned, with a direction to reconsider it and reach a decision in accordance with findings of the High Court." (emphasis added). lt seems clear ro me that the above rr-rle gives the High Court discretion to remit the matter to the authority concerned after quashing the decision. In the instant case, the trial judge exercised his discretion not tc

remit the matter to I(DLB on the ground that owing to the peculiar facts of this case, characterizecl by the existence of a relationship between KDLB and the appellant, that rvas so much biased against the 2"d respondent that, in his view, the correct decision would not be reached. He thus issued an order of Mandamus, in his view, to serve the interests of justice. He therefore directed KDLB to grant t]ne 2"d respondent a renewal of the lease over the suit property, " on such terms and conditions , as those that had been given to the appellant in the lease offer of 22"d March 2005.

In the Court of Appeal, Hon. Justice Mpagi-Bahigeine, DCJ, as she then was, in her lead judgment confirmed the orcler of MancLamus made by the trial judge in the following words:-

"Doing justice in the case before the trial judge called for the decision he made. Court constitutionally are enjoined to administer substantive justice rvithout undue regard to technicalities under Article L26 l2l (e) of the Constitution. I find that this is a proper case to be determined in accordance with that Article.',

First of all, I am unable to fault the learned trial juclge for exercising his discretion not to remit the matter to KDLB because rule 1O (4) of the Civil Procedure (Amendment) (Judicial Review) Rules, 2003 SI 75 of 2OO3 gives him discretion whether or not to

remit the mattel- lo the authoritv concerned after quashing the decision. In my view, this is intended to cover a situation '"vhere the High Court can properly make an order of Mandamus instead.

The question here is was the trial judge right to rrrake the orcler of Mandamus in the instant case?

Section 36 (1) (a) of the Judicature Act shows that an order of Mandamus is made rvhere the Statutory or public body c<tncerned has a duty to do the act in relation to the decision which hacl been quashed. In the instant case, Section 57 (1) (a) of the Lands Act 1998 which authorises I(DLB to allocate Iands does not irnpose a duty on KDLB to allocate. KDLB has porvers to allocate. The Section reads:-

## "7) The functions of a board sh<z,ll be to:-

# a) hold and allocate land in the district which is not owned. bg ang person or autharitg;

The case of Fletcher (supra) offers a very good example of the situation when an order of Mandamus can be made. In that case, an application by Fletcher for leave to apply for an order of Mandamus directing the Parliamentary Commissioner for Administration to investigate an allegation of neglect of duty against the Official Receiver acting as a liquidator of a company was

refused by a division ofthe Higl-r court. His appeal to the court of Appeal was summarily disrnissed. His request for reave to appeal against the refusal to the House of Lords was also rejected on the ground that section 5 (l) of the parliamentary Act, 1967 did not confer on the commissioner a duty but rather a discretion whether or not to investigate.

In my considered view, the order of Mandamus in this case was, with respect, made without jurisdiction and therefore erroneous.

From the reason given by the learned trial judge, it is clear that he had been moved to make the order of Mandamus by his fear that, owing to the existence of a relationship bet\*,een KDLB and the appellant characterizecl by so much bias against the 2nd respondent, the correct decision, in his vierv, u'oultl not be reachecl if he remitted the rnatter to KDLB. In my opinion, this was, ,,vith respect, a wrong consideration to take because in a judiciai review, the court is not concerned with the correctness of the decision but rather with the process leading to the decision. See chief Constable of North Wales Police (Supra).

while I agree that courts have a constitutional duty to ensure that justice is done to ali, this duty is subject to the law. Making an order when the court has no jurisdiction to do so is not a matter of

technicality but of substantive law as jurisdiction is granted by statute. In Zaabwe Vs Orient Bank and 3 Others (supra) this Court, Katureebe, JSC; as he then was, stated that article126 (2) (e) requires Courts to apply the law but not to have undue regards to technicalities. Invocation of Article 126 (2) (e) of the Constitution when the High Court had, in the circumstances, no jurisdiction to make the order, did not promote justice according to the law.

I also hold the view that even section 33 of the Judicature Act is not applicable because the application for lease of the suit property was not before the High Court but before KDLB.

In the result, I would allow the appeal in part and make the following orders:-

1) The order of Mandamus made by the High Court on 21-4-2006 and confirmed by the Court of Appeal on 1st June 2011 is set aside.

2) Substituted therefor is an order remitting the matter to KDLB for reconsideration and decision in accordance with the findings of the High Court.

3) Appellant to pay 80% of the $2^{nd}$ respondent's costs of the appeal here and in the Courts below.

Dated at Kampala this....................................

#### G. M. OKELLO

### AG. JUSTICE OF THE SUPREME COURT

### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: KATUREEBE JSC., KISAAKYE, ARACH-AMOKO, JJSC; TSEKOOKO AND OKELLO, AG. JJSC)

#### CIVIL APPEAL NO. 06 OF 2013

#### **BETWEEN**

PAULO KAMYA ................ .................. APPELLANT

#### AND

#### 1. KAMPALA DISTRICT LAND BOARD

$2.$ NANZARALI PANJWANI Administrator of the Estate of late ............. RESPONDENTS ALIRAZAK PANJWANI

Appeal from the Judgment of the Court of Appeal at Kampala (Mukasa – Kikonyogo DCJ Mpagi-Bahigeine and Kayuma, JJA) dated 1st June, 2011 in Civil Appeal No. 83 of 2006 arising from the decision of the High Court in Civil Suit No. 07 of 2005 by *(originality summons)*

#### JUDGMENT OF KATUREEBE, JSC

I have had the benefit of reading in draft the judgment of my brother G. M. Okello, Ag. JSC and I fully agree with him that this appeal should only succeed in part for the reasons he has given.

I also agree with the order he has made as to costs.

As all the members of the court agree the appeal succeeds in part. The order of Mandamus made by the High Court is set aside.

By majority decision of 4 to 1, the appellant shall pay 80% of the costs of the 2nd respondent in this court and the courts below.

Dated at Kampala this $\frac{8}{5}$ day of July 2015.

Bart M. Katureebe JUSTICE OF THE SUPREME COURT

### THE REPURLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: Katureebe, CJ., Dr. Kisaakye, Arach-Amoko, JJSC; Tsekooko & Okello, Ag. JJSC)

#### CIVIL APPEAL NO. O6 OF 2013.

#### **BETWEEN**

PAULO KAMYA:::::::::::::::::::::::::::::::::::

#### AND

1. KAMPALA DISTRICT LAND BOARD 2. SADRUDIN ALIRAZAC PANJWAN

**:::::::RESPONDENTS**

{Appeal from the decision of the Court of Appeal at Kampala (Mukas-Kikonyogo, DCJ, Mpagi-Bahigaine & Kavuma, JJA). Dated 01st June, 2011 in Civil Appeal No. 83 of 2006

#### JUDGMENT OF M. S. ARACH-AMOKO, JSC

I have had the benefit of reading in advance the draft Judgment prepared by my learned brother, Hon. Justice. G. M Okello, Ag. JSC, and I concur with his reasoning, conclusion and the orders he proposed.

Dated at Kampala this $\frac{\mathcal{M}}{\mathcal{M}}$ day of $\frac{\mathcal{M}}{\mathcal{M}}$ 2015

M. S. ARACH-AMOKO

JUSTICE OF THE SUPREME COURT ## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPAIA

{Coram: Katureebe, C. J., Dr. Kisaakye, Arach-Amoko, JJSC.: Tsekooko & Okello, Ag. JJSC.}

# Civil Appeal No. 06 of 2013

| | | Between | | |----|----------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------| | 15 | PAULO KAMYA | $\footnotesize\texttt{``````\texttt{``\texttt{``}}\texttt{``\texttt{''}}\texttt{''}}\texttt{``\texttt{''}}\texttt{``\texttt{''}}\texttt{''}\texttt{''}\texttt{''}\texttt{''}\texttt{''}\texttt{''}\texttt{''}\texttt{''}\$ | APPELLANT. | | | | And | | | | KAMPALA DISTRICT | | | | | LAND BOARD | $$ *************************************** | RESPONDENTS. | | 20 | 2. SADRUDIN ALIRAZAC | | | | | PANJWANI | | |

(Appeals from the decision of the Court of Appeal at Kampala (Mukasa-Kikonyogo, DCJ., Mpagi-Bahigeine & Kavuma, JJA) dated 01' June, 2011 in Civil Appeal No. 83 of 2006 }

$25$

$5$

### JUDGMENT OF J. W. N. TSEKOOKO, AG. JSC.:-

I have had the benefit of reading in advance in draft the judgment prepared by my learned brother, the Hon. Justice G. M. Okello, Ag. JSC. and I agree with his conclusions that the appeal should succeed in part. I also agree with the order as to costs.

$\angle$

Delivered at Kampala this day of July, 2015.

J. W. N. Tsekooko, Ag. Justice of the Supreme Court.

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: KATUREEBE CJ., KISAAKYE, ARACH-AMOKO, JJ. S. C; TSEKOOKO, OKELLO Ag. JJSC)

## CIVIL APPEAL NO. 06 OF 2013

#### **BETWEEN**

PAULO KAMYA :::::::::::::::::::::::::::::::::::

#### AND

### 1. KAMPALA DISTRICT LAND BOARD 15 2. SADRUDIN ALIRAZAK PANJWANI (ADMINISTRATOR OF THE ESTATE OF THE LATE ALIRAZAK NAZARALI PANJWANI) :: RESPONDENTS

$\mathsf{S}$

[An Appeal arising from the Judgment of the Court of Appeal (Kikonyogo DCJ., Mpagi-Bahegeine, Kavuma, JJ. A) dated 1st. June, 2011 in Civil Appeal No.83 of 2006.]

#### JUDGMENT OF DR. KISAAKYE, JSC.

$L12$

I have had the benefit of reading in draft the Judgment of my brother, Okello, Ag. JSC.

I agree with his reasoning and conclursions in respect to the preliminary issue which was raised by the second respondent as well as all the grounds of appeal. I zrlso agree that this appeal should succeed in part and that the order of Mandamus should be set aside.

I would, however, modify the second proposed order ancl order that:

- a) The Kampala District Land Board rescinds its decision which dismissed the 2"d appellant's application for renewal of the lease in respect to LHR Volume 99 Folio 22,plot No. 2 Makerere Roacl. - b) The second appellant's application for renewal of the lease for the suit property is remitted back to the Kampala District Land Board for reconsideration in accordance with the provisions of the Constitution and this Court's d.ecision. - Lastly, with regard to costs, I am not satisfied that the appellant should be condemned in costs. The circurnstances that necessitated the second appellant to apply for a juclicial review in the first place was created by the first respondent rvho rejected the second appellant's application and evicted his tenants without giving the second respondent a hearing. It is the same first respondent that made the decision to grant a lease to the appellant, although the application was lodged later than the application of the second respondent. Unfortunateiy, the first respondent opted not to participate in these proceedings, although they were served. 15 20

2 A1

The second and third appeal respectively emanated from the errors of law on the part of the trial judge who made an Order for mandamus and the learned Justices of Appeal who upheld the Order. This Court has reviewed the law and agreed with the appellant to set aside the Order.

In the result, the appellant has been successful on one of the two grounds of appeal on which he based his appeal to this Court. In the circumstances surrounding this appeal, I believe the interests of justice would be best served if each party meets his costs.

DATED at Kampala this .................................... 10

Thisaakye

# HON. JUSTICE DR. ESTHER KISAAKYE JUSTICE OF THE SUPREME COURT

. . . . . . . . . . . . . . . . . . .

$\mathsf{S}$

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT **KAMPALA**

(CORAM: KATUREEBE CJ., KISAAKYE, ARACH-AMOKO, JJ. S. C; TSEKOOKO, OKELLO Ag. JJSC)

## CIVIL APPEAL NO. 06 OF 2013

#### **BETWEEN**

PAULO KAMYA :::::::::::::::::::::::::::::::::::

#### AND

$\frac{m}{2} \left[\frac{m}{2} \right] = \frac{m}{2} \left[\frac{m}{2} \right] \left[\frac{m}{2} \right] \left[\frac{m}{2} \right]$

$\sim$ $\sim$

mand el

### 1. KAMPALA DISTRICT LAND BOARD 15 2. SADRUDIN ALIRAZAK PANJWANI (ADMINISTRATOR OF THE ESTATE OF THE LATE ALIRAZAK NAZARALI PANJWANI) :: RESPONDENTS

$\mathsf{S}$

[An Appeal arising from the Judgment of the Court of Appeal (Kikonyogo DCJ., Mpagi-Bahegeine, Kavuma, JJ. A) dated 1st June, 2011 in Civil Appeal No.83 of 2006.]

#### JUDGMENT OF DR. KISAAKYE, JSC.

I have had the benefit of reading in draft the Judgment of my brother, Okello, Ag. JSC.

$145$

I agree with his reasoning ancl conclusions in respect to the preliminar5r issue which was raised b), the second responcient as well as all the grouncls of appeal. I also agree that this appeal should succeed in part and that the Order of Mandamus should be set aside.

I would, however, modify- the second proposecl Order and order that:

- a) The Kampala District Land Board rescinds its decision rvhich dismissed the 2"d appellant's application for renewal of the lease in respect to LHR Volume 99 Folio '22, Plot No. 2 Makerere Road. - b) The second appellant's application for renewal of the lease for the suit propert5r is remitted back to the Kampala District Land Board for reconsideration in accordance rvith the provisions of the Constitution and this Court's decision. - 15 20 Lastly, with regard to costs, I am not satisfied that the appellant should be condemned in costs. The circumstances that necessitated the second appellant to apply for a judicial revierv in the first place was created by the first respondent who rejected the second appellant's application and evicted his tenants without giving the second respondent a hearing. It is the same first respondent that made the decision to grant a lease to the appellant, although the application was lodged later than the application of the second respondent. Unfortunately, the first respondent opted not to participate in these proceedings, althorrgh they were served.

'Lt6

The second and third appeal respectively emanated fi.om the errors of law on the part of the trial jtrdge u,ho made an Order for mandamus and the learned Jrrstices of Appeal who upheld the Order. This Court has reviewed the law and agreed with the appellant to set aside the Order.

In the result, the appellant has been successful on one of the two grounds of appeal on which l-re based his appeal to this Court. In the circumstances surrounding this appeal, I believe the interests of justice would be best served if each parQr meets his costs.

E-10 DATED at Kampala this day or l-A 2015.

/> t frd-)

HON. JUSTICE DR. ESTHER KISAAI(YE JUSTICE OF THE SUPREME COURT