Nabagesera and 4 Others v Uganda Land Commission (Miscellaneous Application 14 of 2020) [2024] UGHCLD 219 (12 September 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO. HCT-00-LD-MA-0014-2020 (ARISING OUT OF CIVIL SUIT NO.153 OF 2016)

| 1. | NABAGESERA NORAH | |----|--------------------------------------------------------------------| | 2. | NAKAZI CHRISTINE | | 3. | NASSUNA JUSTINE | | 4. | NAMUTEBI AGATHA | | 5. | NAMAYANJA ROSETTE:::::::::::::::::::::::::::::::::::::: APPLICANTS |

#### VERSUS

UGANDA LAND COMMISSION::::::::::::::::::::::::::::::: RESPONDENT

#### BEFORE HON. JUSTICE BERNARD NAMANYA

### RULING

- 1. The applicants seek an order to set aside a consent judgment, entered by the court on the 6 July 2018, between the applicants and Uganda Land Commission, concerning land at Mandela National Stadium Nambole, in Civil Suit No.153 of 2016. In that consent judgment, the parties agreed that, 16 acres of land at Mandela National Stadium Nambole, was legally acquired by the Government of Uganda, and that the applicants were fully compensated, and that the compensation was received by James Nsubuga, an Executor of the Estate of the late Keresipo Kitaka. - 2. A brief background of the application is as follows: - i). Sometime in 1989, the Government of Uganda compulsorily acquired land for the construction of Mandela National Stadium at Nambole. The land comprised in Kyadondo Block 234 Plot 263 land at Kilinya (Nambole), measuring 16 acres, was one of those plots of land, that

were compulsorily acquired for the construction of the Mandela National Stadium. The land was compulsorily acquired by the Government of Uganda pursuant to Statutory Instrument No.226–31, The Land Acquisition (Nambole) Instrument, 1989.

- ii). At that time, the land was registered in the names of James Nsubuga and Norah Nabagesera, who were entered as the registered proprietors of the land under Instrument Number KLA103108 on the 12 July 1982, in their capacity as the Executor and Executrix of the Estate of the late Keresipo Kitaka, Admin Cause No.114 of 1981. - iii). The certificate of title on the court record, indicates that Uganda Land Commission was entered as the registered owner of the land comprised in Kyadondo Block 234 Plot 263 land at Kilinya (Nambole), measuring 16 acres, on the 30 August 1993 vide Instrument Number KLA161502. The certificate of title is part of the documents annexed to the affidavit of Mr. Phillip Okiror, Principal Land Officer of Uganda Land Commission, sworn on 17 January 2017, in Misc Application No.1307 of 2017. The parties did not adduce evidence on the current registration status of the land. - iv). About 27 years later in 2016, the applicants (including Nabagesera Norah, Executrix of the Estate of the late Keresipo Kitaka), filed Civil Suit No.153 of 2016 against Uganda Land Commission. The suit was heard ex parte, and judgment was delivered in favour of the applicants, by Hon. Justice Namundi Godfrey, on the 22 August 2017. The court ordered that: i) the Registrar of Titles cancels the registration of Uganda Land Commission from the certificate of title for the land; and that the Registrar of Titles registers James Nsubuga and Norah Nabagesera, as the rightful proprietors of the land. - v). In 2018, the applicants and Uganda Land Commission, signed a consent judgment in Civil Suit No.153 of 2016 on the 6 July 2018.

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- vi). In 2017, Pioneer Easy Bus (U) Ltd and Uganda Land Commission, filed Misc. Application No.1735 of 2017 & 1307 of 2017, seeking to set aside the ex parte judgment. Those applications were dismissed by Hon. Justice Cornelia K. Sabiiti in a Ruling delivered on the 10 December 2019. - vii). On the 9 January 2020, the applicants filed Misc Application No.14 of 2020 that is now before me for consideration and disposal. - viii). On the 24 January 2020, Uganda Land Commission filed Misc Application No.79 of 2020 seeking to set aside the ex parte judgment in Civil Suit No.153 of 2016, delivered by Hon. Justice Namundi Godfrey, but the application was dismissed by Hon. Justice John Eudes Keitirima, in a Ruling delivered on the 11 December 2020. - ix). On the 17 December 2020, the Attorney General, on behalf of Uganda Land Commission, filed a Notice of Appeal against the Ruling of Hon. Justice John Eudes Keitirima. - x). On the 17 November 2023, the Attorney General, on behalf of Uganda Land Commission, filed a memorandum of appeal, in the Court of Appeal, Civil Appeal No.1465 of 2023, against the Ruling of Hon. Justice John Eudes Keitirima. The appeal by the Attorney General, is pending hearing. - 3. The application to set aside the consent judgment, is supported by an affidavit sworn by Ms. Nabagesera Norah (1st applicant) on the 18 December 2019, and a supplementary affidavit sworn by Ms. Nakazi Catherine (2nd applicant) on the 3 February 2022. The application is opposed by the respondent, through an affidavit in reply sworn on the 11 June 2024, by Mr. Andrew Nyumba, the Acting Secretary of Uganda Land Commission.

- 4. At the hearing of the application on the 18 April 2024, the applicants were represented by Mr. Joseph Kyazze of M/s MAGNA Advocates. The respondent was represented by Mr. Walakira Ronald, a Legal Officer of Uganda Land Commission. On the same day, the court issued the following directions for filing pleadings and written submissions as follows: affidavit in reply of the respondent, by 2 May 2024; a rejoinder by the applicants, by the 4 May 2024; written submissions of the applicant, by 10 May 2024; written submissions of the respondent, by 17 May 2024; and submissions in rejoinder of the applicants, by 20 May 2024. Other than the respondent who filed an affidavit in reply on the 13 June 2024, the rest of the parties, did not file any additional pleadings or submissions. It is noted however, that the applicants had previously filed written submissions on the 21 March 2022. - 5. The main issue for determination is whether the applicants have satisfied the conditions for setting aside, the consent judgment, entered by the court on the 6 July 2018, between the applicants and Uganda Land Commission, concerning land at Mandela National Stadium Nambole, in Civil Suit No.153 of 2016. - 6. The law stipulates that any person considering himself or herself, aggrieved by a judgment or ruling of the court, may apply for a review of the judgment or ruling, to the court which passed the decision. See Section 82 of the Civil Procedure Act; Order 46 rule 1 of the Civil Procedure Rules; and FX Mubukuke v. UEB, High Court Miscellaneous Application No.98 of 2005. - 7. The settled position of the law, is that a consent judgment may set aside, if it is proved that it was obtained through illegality, fraud, mistake, misapprehension or contravention of court policy or in general, any reason that would enable a court to set aside a contract. See Attorney General &

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Uganda Land Commission v. James Mark Kamoga and James Kamala, Supreme Court Civil Appeal No.8 of 2004 [2008] UGSC 4 (Coram: Odoki C. J., Tsekooko, Mulenga, Kanyeihamba, & Katureebe JJ. S. C).

- 8. I have had the benefit of reviewing the court record in Civil Suit No.153 of 2016, including Misc Application No.1307 of 2017; and No.79 of 2020: Uganda Land Commission v. Nabagesera Norah & Others. - 9. From the outset, and before I even delve into the merits of the application; based on the review of the court record, I wish to note as follows: - 9.1 Firstly, the land comprised in Kyadondo Block 234 Plot 263 land at Kilinya (Nambole), measuring 16 acres (Mandela National Stadium at Nambole), was compulsorily acquired by the Government of Uganda pursuant to Statutory Instrument No.226-31, The Land Acquisition (Nambole) Instrument, 1989. That was way back in 1989! 35 years ago! - 9.2 Secondly, Uganda Land Commission was entered as the registered owner of the land comprised in Kyadondo Block 234 Plot 263 land at Kilinya (Nambole), measuring 16 acres, on the 30 August 1993 vide Instrument Number KLA161502. - 9.3 Thirdly, in a letter dated 27 July 1992, reference number V/122.16D, the Department of Land Administration, informed the Executive Director of the Departed Asians Property Custodian Board, that the land comprised in Kyadondo Block 234 Plot 263 land at Kilinya (Nambole), was fully acquired by the Government of Uganda and that the previous owners were compensated. The letter is attached to an affidavit sworn by Phillip Okiror,

Principal Land Officer of Uganda Land Commission, on the 17 January 2017, in Misc Application No.1307 of 2017 and is reproduced below:

"The Executive Director, Departed Asians Property Custodian Board, P. O. Box 579, Kampala.

THE LAND ACQUISITION (NAMBOLE), STATUTORY INSTRUMENT NO.23 OF 1989

The above Statutory Instrument acquired a large parcel of land at Nambole for the construction of a National Stadium.

Included in the parcel of land were Plot Nos. 55 and 263 Kyadondo Block 234 which belonged to one Keresipo Kiraka who leased the same to Kirinya Granite Quarries Limited for 49 years with effect from 30th July, 1970. The latter (Kirinya Granite Quarries Ltd) has been under your management since the departure of the Asians in 1972 as it had been owned by the Asians who were forced to leave the country.

In early 1973 you allocated the said quarry to Buganda Stone Quarry Limited who have been running the business since then.

However, following the acquisition government paid compensation to both parties; namely Mr. James Nsubuga as the Administrator of the Estate of the late Keresipo Kitaka and the Departed Asians Properties Custodian Board as managers of the Departed Asians properties. Thus the land become the property of the Uganda Government."

9.4 Fourthly, there is evidence to suggest that the applicants were compensated by the Government of Uganda for their land. In Misc Application No.1307 of 2017, an affidavit of Mr. Phillip Okiror, Principal Land Officer of Uganda Land Commission, sworn on the 23 March 2018, states that the applicants

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were compensated by the Government of Uganda. He attaches a letter authored by Bank of Uganda, dated 22 November 2017, written by Charity Mugumya (Mrs.), Ag. Director, confirming that compensation was paid by the Government of Uganda to James Nsubuga, an Executor of the Estate of the late Keresipo Kitaka. The said letter is reproduced below:

### "BANK OF UGANDA

OFFICE OF THE DIRECTOR BANKING

BAN.909.18 November 22, 2017

The Ag. Secretary Uganda Land Commission P. O. Box 36408 Kampala, Uganda

# Payment to Beneficiaries under compulsory acquisition of land for the establishment of Namboole National Stadium.

Reference is made to your letter Ref: ULC/151/3559 dated October 27, 2017 requesting for documentation/proof of payment in regard to compensation for land at Nambole for a one James Nsubuga and Norah Nabagesera.

Please find attached a copy of the cheque dated May 10, 1991 confirming payment of UGX 10,943,050 to James Nsubuga. Unfortunately that is the information we have been able to retrieve so far and we will get back to you as soon as we acquire any additional information in regard to the said payments.

Charity Mugumya (Mrs.) Ag. Director

Page 7 of 13 ## Copy to: Chairman, Uganda Land Commission Director Commercial Banking"

- 9.5 The above letter authored by Bank of Uganda, seems to suggest that, by the time the applicants filed Civil Suit No.153 of 2016, the Estate of the late Keresipo Kitaka, had long been compensated by the Government of Uganda on the 10 May 1991, for their land at Nambole; and the legal representative of the Estate, the late James Nsubuga, received the compensation. - 9.6 Fifthly, some of the applicants (Nabagesera Norah, Nakazzi Christine and Nassuna Justine) by their signed letter dated 28 July 2017, confirmed that the Government of Uganda compensated them for their land. The said letter is attached to an affidavit sworn by Phillip Okiror, Principal Land Officer of Uganda Land Commission, on the 23 March 2017, in Misc Application No.1307 of 2017, and is reproduced below:

"Date: 28th July 2017

1. The Minister of Lands, Housing and Urban Development Hon. Betty Amongi

2. The Minister of State for Land Housing and Urban Development Hon. Namuganza Persis

## RE: RELINQUISHING ALL CLAIMS, RIGHTS ON BLOCK 234 PLOT 263 LAND AT KYADONDO.

WE, the administrators, beneficiaries, heirs and children of the late Crespo Kitaka, RELINQUISH ALL our claims, rights both NOW and FUTURE of land on block 234 Plot 263 Kyadondo. We confirm that compensation by Government was already made, and the caveat that was lodged by the administrators and the beneficiaries was withdrawn from the said land, all our interests

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having been fulfilled. And we hereby, categorically have no further interest.

We UNDERTAKE and AGREE that we shall not raise any objections, complaints or any interest in the said land both now and in the future and by signing this agreement all our rights and interests have been met. Signed this….day of July 2017 by;

1. NABAGESERA NORAH (signed) 2. NAKAZZI CHRISTINE (signed) 3. NASSUNA JUSTINE (signed) 4. AGNES MUTEBI 5. KIYEGA HENRY

In the presence of………………….. (signatures)

Copies to: -Uganda Land Commission -Hon. Mukwaya Janat, Minister of Gender, Labour & Social Development"

- 9.7 Sixthly, this state of affairs triggers several questions that need thorough investigation. If Uganda Land Commission was registered as the owner of the land in 1993; how come the applicants did not challenge the registration of Uganda Land Commission at the time, but instead filed a suit on the matter, 23 years later? Given that there is evidence that the Government compulsorily acquired the land in 1989, pursuant to Statutory Instrument No.226-31; how come the applicants did not immediately challenge the actions of the Government, but waited for 23 years to file a suit against the Uganda Land Commission in 2016? - 9.8 It is against this background, that the applicants and Uganda Land Commission, signed the impugned consent judgment on the 6 July 2018.

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- 10. Let me now turn to the merits of the application. - 11. The applicants claim that they are illiterates, and were tricked into signing the consent judgment, without understanding its full implication. In paragraphs 18(iv) to 18(ix) of the affidavit in support of the application, Ms. Nabagesera Norah, averred as follows:

"iv) That about the 20th day of May, 2018, the respondent's lawyer namely Muhangi George, called me through my daughter Nakazi Christine, the 2nd applicant to go with my co-applicants to their law chambers office, which we knew and went to.

v) That the lawyer requested us to sign without translating to us, the illiterates, the contents of the single document which was titled "we consent" and below it were spaces for signatures against the respective names.

vi) That when we asked how much and where the money would be paid, the lawyer replied that the amount would depend on the amount that would be required by the hospital and travel expenses, which would be assessed later after appearing before the Registrar in Court and when we did, she asked us whether it was us that had signed and we answered in the affirmative. She then signed.

vii) That the respondent's lawyer we went with to court remained with all the signed documents and told us that we wait for the response within a short time, at least two days.

viii) That after the lapse of the said period, we approached Mr. Muhangi George for the money and he replied that we would have to wait for a long time because Government does not release money at short notice.

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ix) That due to lack of funds for specialized medical treatment abroad, James Nsubuga died and the purpose for which we signed the "Consent" document collapsed."

12. Mr. Andrew Nyumba, the Acting Secretary of the Uganda Land Commission, deponed an affidavit in reply, on the 11 June 2024, stating that the applicants knew the implication of appending their signatures, on the consent judgment. In paragraph 8, he averred as follows:

> "That at all material times, the Applicants were in full knowledge of the contents of the consent judgment and were well furnished with the material facts and knew the implication of appending their signatures on the agreement."

- 13. The evidence on court record shows that consequent to the ex parte judgment dated 22 August 2017, the parties negotiated the impugned consent judgment. The 1st applicant attached to her affidavit sworn on the 18 December 2019, a letter from the Hon. The Principal Judge, The Hon. Justice Dr. Yorokamu Bamwine, dated 5 July 2018 (annexure "PH"), to the Deputy Registrar of the Land Division. The letter informs the Deputy Registrar that the parties had reached a consent judgment. The letter by the Hon. The Principal Judge, was preceded by a letter from M/s Kafeero & Co Advocates, the lawyers of Uganda Land Commission, dated 20 June 2018, informing the Hon. The Principal Judge, that the parties had agreed to a consent judgment in Civil Suit No.153 of 2016, and were eager to sign it. - 14. The general rule is that a party of full age and understanding, is normally bound by his or her signature on a document, whether he or she reads or understands it or not. If, however, a party has been misled into executing a document, different from that which he or she intended to execute or sign,

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he or she can plead non est factum (it is not my document). The burden of proving non est factum falls on the party seeking to disown the document. In Saunders v. Anglia Building Society [1970] 3 All ER 961, the court rejected a plea of plaintiff, who sought to disown a deed of sale of a house, claiming that it was not her intention to sell the house to a different party, but rather to gift the house to her nephew.

- 15. In my opinion, there is ample evidence to prove that the applicants knowingly and voluntarily, agreed to the terms of the impugned consent judgment. I am satisfied that the applicants knew the implication of their signature on the consent judgment. The applicants knew what they were doing, and understood the full implication of the consent judgment. By signing the consent judgment, the applicants acknowledged that 33 years ago, in 1991, the Government of Uganda compensated them for the 16 acres of land at Nambole, that was compulsorily acquired. The compensation was received by the late James Nsubuga, in his capacity as the Executor of the Estate of the late Keresipo Kitaka. There is evidence to prove, that the late James Nsubuga received the compensation, as per the above letter authored by the Bank of Uganda. - 16. The applicants cannot turn around, and disown a consent judgment, that they voluntarily and knowingly signed. The applicants are fully bound by the consent judgment and must respect it. I therefore, reject the applicants' plea, that they did not understand the terms of the consent judgment, when they appended their signature. - 17. In my opinion, the impugned consent judgment was not meant to provide fresh compensation to the applicants, but rather to acknowledge that the Estate of the late Keresipo Kitaka, was fully compensated for the 16 acres

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of land at Nambole way back in 1991; and that the land was compulsorily acquired by the Government of Uganda.

- 18. In conclusion, I hereby dismiss the application to set aside the consent judgment entered by the court on the 6 July 2018, between the applicants and Uganda Land Commission, concerning land at Mandela National Stadium Nambole, in Civil Suit No.153 of 2016. - 19. I order the applicants (Nabagesera Norah, Nakazi Christine, Nassuna Justine, Namutebi Agatha and Namayanja Rosette) to pay the costs of the application.

## IT IS SO ORDERED.

BERNARD NAMANYA JUDGE 12 September 2024

## Delivered by E-mail & on ECCMIS:

| Counsel for the applicants: | joseph.kyazze@yahoo.com | |-----------------------------|-------------------------| | | alexkamukama@gmail.com | | Counsel for the respondent: | walronnis@gmail.com |