Nakanwagi v Stirling Engineering (U) Limited & Another (Civil Suit 690 of 1993) [1995] UGHC 36 (14 March 1995)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 690/93

ELIZABETH NAKANWAGI s:::::::::::::: PLAINTIFF

### VERSUS

1. STIRLING CIVIL ENGINEERING (U) LTD. ) **......... DEFEN5\*KTS •** 2\* UGANDA LAND COMMISSION )

**BEFORE:** THE HON, MR. JUSTICE F. H. S. EGONDA NTENDE.

# JUDGMENT

The Plaintiff, Elizabeth Nakanwagi,. has sued M/S Stirling **Civil** Engineering (U) Ltd\*, and Uganda Land Commission, hereinafter to as Defendant No\*1 and No#2 respectively in a bid to recover land situated at Kasenge, Mukono# Defendant No#1 opposed this **actloa^** denying that it obtained the suit land illegally\* Defendant No\*2 similarly opposed the action and contended that the grant of the euit land to Defendant No\*1 was legal# At the commencement of the **hearing** one issue was framed\* And that is:-\* whether the suit land belongs to the Plaintiff or Defendant No#1?

The facts of this case arc not in dispute\* The suit land ia situated at Kasenge village in Mukono District according to the papers of the Plaintiff and at Mbolala, Mukono District according to the papers of the Defendant# But as it will become evident inspite of the different descriptions the suit land is clearly the land described differently. On 1Jth May 1988, the Department of Lands, acting as the land agents for Defendant No.2 issued to the Plaintiff a lease offer, offering her approximately 4.8 hectares of land at Kasenge, Mukono# This land was originally occupied by the Plaintiff's father and 0.1 his death, continued to be occupied by the Plaintiff's family un lor customary tenure# The Plaintiff was required to pay a total of shs. 12^100/= for premium, survey and markstones, preparation of lease, assurance of title, registration of lease rent and land agency fees# This money was

paid on 13/5/88 vide General Rooiept No. Y. 625581• The lease offer was made, interalia, on the following term:-

> "(a) Lease for an initial period of 5 years from 1st of month after survey\* On completion of building covenant, an extension to a total period of ^9 years will be granted".

On 15th May 1988, instructions to survey were issued by the relevant Government section under instruction Noo 70599. The survey was executed and approved in 1939 • It was approved by Mr. K. S. B. Mubbala The Commissioner for Surveys & Mapping on 8th February 1989. The land was designated as Plot 23 measuring 3O68 Hectares. Prints were issued.

According to PW1, the Plaintiff, and PW2, her husband, these prints were taken to the Department of Lands and they were told to wait for issue of a Certificate of Title. It was never to come inspite of their regular efforts to call on the concerned office. Finally they discovered that their land had been offered to Defendant No.1.

On the 20/3/1990 the Department of Lands issued instructions to the District Surveyor, Mukono to survey 8 acres of land at Mbalala, Mukono for Defendant No.1. This survey was done by PW3 who approved it on 29th March 1990. Tho speed with which this matter was treated is in stark contrast with the delay exhibited in handling the Plaintiff's similar instru tions. PW3 stated that the 8 acres of land were designated Plot and Plot 29 which was 2.^3 Hectares and 0.82 Hectares respectiv I y. Plot 27 was surveyed off Plot 23\* There was infact a sub—divi i on of Plot 23 which -as in the words of PW3, Assistant Commissi' for Survey & Mapping:-

"We did not recieve in . 'uctions to sub-divide an existing Subsequently Defendant Nod was issued with a 5 year lease by Defendant No.2 and a Cert: fioate of Title described as leasehold **4- omoA** Tkra IpsRfi war to run

*2*

from the 1st April 1990.

Defendant No.2 called a Land Officer, Lilian Keene, as its witness to explain this bewildering situation. She did so in the following words during examination in chief:-

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"Stirling Astaldi has a land title. According to that time, it was taken that Government had an interest in Stirling, so they decided to give it a lease. This was in accordance with Government Policy".

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In cross examination she stated:-

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"Lease documents on this file were not requested because Government came in. They sat and decided that Stirling must be offered the land. I do not have the minute. On the file they used a Circular Standing Instruction No.1 of 1969. I have not gone through it but it is on the basis of that that U. L. C. was advised to allocate land to Stirling. It is on the basis of that on which they decided not to give the land to Nakanwagi..... Stirling came with pressure from the Ministry of Works.... The grant to Nakanwagi lapsed once U. L. C. decided to give land to Stirling".

Later on she stated that no title was issued to Nakanwagi because of Government Policy.

Counsel for Defendant No.2 submitted that the Defendant No.2 did not act illegally in granting a lease to the Defendant No.1. He relied on sections 8, 17 and 54 of the Public Lands Act. He also referred to S.1 201-1, The Public Lands Rules and in particular Rule 8(1)(c) to explain why Defendant No. 1 as it were, dispossessed the Plaintiff. He submitted that Defendant Po.2 acted in conformity with Government Policy as it was required to do by the Act. He further submitted that since Defendant No.1 $\eta_{\rm C3}$ siezed with a Certificate of Title this was impeachable under section 61 of the RTA save for fraud. He referred to the case of C. Zimbe -vrs- Kamanza Vol. 7 U. L. R. 68 and Katarikawe -vrs- Kitwiromu [1977] H. C. B. 187.

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Counsel for Defendant No.1 similarly reagitated the submissions of Counsel for Defendant No.2. In addition he referred to Sections % and 184 of the RTA which he submitted both protected the Defendant No.1 and barred any action against it except on allegations on fraud.

Counsel for the Plaintiff submitted that the grant to Defendant No.1 by Defendant No.2 was void because there was no land available to grant to the Defendant No.1. He referred to the case of Livingstone Sewanyana ~vrs~ Martin Aleker Civil Appeal No.4 of 1990 (unreported). He submitted that Circular No.1 of 1969 Exh. P.5 upon which reliance was placed to grant the Plaintiff's land to Defendant No.1 was not relevant as Defendant No.1 was not a -Government Ministry or Department.

According to the testimony of DV72, the Deed Plans for Plot 25 granted to the Plaintiff wore dated .8th February 1989\* This is the date that must be taken to signify completion of the survey. According: to the lease offor granted to the Plaintiff, her lease was to ecmmenco, one month after survey. This would put the commencement of her lease on or about the 8th March 19&9« For reasons which we shall presently review the Department of Lands, and Defendant No.2 declined to prepare lease documents and consequently issue a Certificate of Title. It is- not clear exactly when the grant was made to Defendant.. No.1. On Exh»P.6, the Inspection Report of Land in respect of Defendant No»1Ts application, there are endorsed 2 Minutes ULC 19/89(b) (116) of 17/3/89 and ULC 19/9O(a)(6O) of 9/2/90. DW2 could not tell which was the date of the grant. She thought it could be either of the two but she could not produce either Minute. Anyhow, even if one took either of the two apparent dates, the grant,- if it .was ovo ' made at all, it may have been on either 17/8/89 or 9/2/90. Whichever of the two dates you take, it was made after- the 8th March 1989 when the Plaintiff's lease had started to run.

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Counsel for Defendant No.2 argues that Defendant No.2 was entitled to do this so. But was it? We shall proceed to seek the answer. Section 2(2) of the Public Lands Act enjoins the Commission in this $manner :=$

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"The Commission shall perform its functions subject to the constitution and in a manner consistent with the provisions of this Act".

Section 8(c) of the same Act authorises Defendant No.2 to "sell lease or otherwise deal with the land held by it" and under para (e) it is allowed to do and perform all other acts, matters and things as may be necessary for or incidental to the exercise of those powers and performance of those duties. Section 10(1) requires the Defendant No.2 to conform with Policy of Government in relation to land matters.

Reference was also made to S.1 201-1, Rule 8 thereof which we set out, not so much to show that it is relevant to this case but to the contrary it clearly is not.

- $18(1)$ If an Applicant, after accepting an offer made under the provisions of these Rules and paying all fees and other monies which he is required to pay, fails to proceed with the signing and registration of the grant or lease, then, unless his failure is due to some neglect or default of the controlling authority - $(a)$ The offer and acceptance shall cease to have effect. - (b) - $(c)$ The controlling authority may offer the land to which the offer and acceptance related to another Applicant, or otherwise dispose of it. - (2) For the purposes o? this rule an Applicant shall be deemed to have failed to proceed with the signing of registration of the grant or lease if he fails to take any step reasonably necessary in connection therewith within one month of being called upon to do so by the controlling authority".

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On the evidence before this Court the Defendant No.2 never called upon the Plaintiff to take any step and the Plaintiff failed to do so within one month of being called upon\* The Plaintiff did all she was required to do but Defendant Mo.2 and its agents, without any default on the part of the Plaintiff, refused to prepare the formal lease papers for execution. Worse still no reason or official communica\* tion was made to the Plaintiff to oxplain these puzzling events.

DW2 referred to Circular No.1 of 1969 as the basis for the **advice** to Defendant No.2 to grant the Plaintiff's land to the Defendant No.1. I have looked at this Circular and I am wondering if the officers responsible and Defendant No.2 ever bothered to look **at its** contents. This is so because its first paragraph makes it ampl^i clear what cases it refers to and allocation of land to Companies whether Government owned or not is not one of such cases. It states x —

> "This Circular sets out the procedure to be followed when a Government Ministry or Department requires buildings or-land for any purpose and replaces C. S.1 No.2 of 19^3, which is hereby cancelled. Hereinafter th^ expressionj Ministry is used interchangeably with the term, Department, as applicable.

The Circular does not refer to acquisition of land by District Administrations or parastatal bodies who should carry out their negotiations".

The circular is headed

"PROCEDURE FOR THE ALLOCATION OF LAND TO GOVERNMENT MINISTRIES AND DEPARTMENTS"

If the circular does not apply to Government, Parastatals or District Administrations how can it apply to Limited Companies whose nationality was described as ITALIAN. Clearly it does not apply. As a basis for the so called^Government Policy it is totally useless save to illustrate the callous manner in which the officials of Defendant No.2 and its agents handled this matter• Defendant No.2 is a constitutional body which is enjoined to act in accordance with the Constitution, and the Public Lands Act and any Law. It cannot act outside the letter and spirit of the Law. Not even when it cites Government Polioy. The Courts cannot take cognisance of Government Polioy which is contrary to the Law and much less enforce the same. Government Policy must be taken to be consistent with the Law of the Land and Courts cannot give effect to what is contrary to the Law under the guise of Government Policy Similarly Defendant No.2 oan only apply Government Policy that is consistent with the Constitution and Laws of this country and not -every statement by servants of Government declared by them to be Government Policy. In the instant case anyway, there is no evidence of what the Government Policy at the time was. Worse still No»2 has not produced Minutes of its relevant decls-louff to shor tha^fc. such decisions were in accordance with any Government Policy at the time on the face of such decisions\* There is no evidence to show ■what information^if\* any at all, was available to Defendant No.2 at the time it mado decision on .this matter \* There is no evidence again to show that Defendant No.2 ordered the sub-division of the Plaintiff1 s Plot 23- ^nd offe-rod port thereof, the new Plot 27, to Defendant No.1.

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Defendant No.2 could only deal with Plot 23 in accordance with. the Constitution, The Public Lunds Act and any regulations thereunder It has no authority to act outside the Constitution, Public Lands Act or Regulations made thereunder or under any other written Law. Rule 8 of S.1 201-1 provides oao way in which Defendant No.2 could have proceeded to deal with Plot 23• But it did not choose this way. Sections 32 and 3& of the Public Lands Act provided another mode of action that may have boon open to Defendant No.2. It chose not to travel upon that path. Defendant No.2 has opted not to tell Court what path it took to arrive at its decision. On the evidence

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available to this Court, I can only conclude that it acted outside the Constitution, the Public Lands Act or any Regulations made thereunder. Its actions theroforo that resulted in the sub-division of Plot 25 must be null and void. The lease to the Plaintiff having commenced on or about the 8th March 19899 even though it was not registered as yet, there was.no land available to Defendant No.2 to again, lease to any person\* As there ■was no land available to it to grant to any other person, any purported grant thereafter must, in my view, be void ab initio and of no legal consequence.

In arriving at this decision I have had regard to the decision of the Supreme Court in Livingstone Sewanynna Martin. Civil Appeal No.4 of 1990\* In this case, the appellant applied for and •was granted about 1ZK>.1. Acros of land from, the Uganda Land Commission. He was given a lease offer of the suit property on 11/8/86. The land was applied for in 1982 and an inspection oscorl^d out on 3/4/1982 by the District Land Committee. It was issued with a Certificate of Title dated 8/9/86 following the grant of the lease under Min. 8/2/82(a)(204) of August 1982\* It transpired that tho Respondent had a running lease up to the 3^/12/1982. In 1986, the Respondents applied for renewal of the lease which was done and the renewal was back-dated to the old lease and a Certificate of Title issued for 49 years from 1/1/1984. After the issue of the Respondent's Certificate of Title the Secretary to the Commission wrote to the Appellant notifying him that the lease of the suit property to him was in error as the land was not available for leasing at the material time r.s the original lease had not expired. He called for the Certificate of Title to cancel it for being null and void. As a result the Appellant commenced an action in the High Court which he lost and he appealed to the Supreme Court.

Oder J.y S. C., stated the opinion of the Court in the following words:-

"The grant made under that Minute / Min. $8/2/82$ (a)(204) of August, 1982 7 was the root from which the offer and the Appellant's Certificate of Title derived their validity. The grant having been made in August 1982 when the suit property was not available for leasing owing to the Respondent's loasehold which was still subsisting at the time, the Commission, in my view, was justified in wanting to cancel it as communicated to the Appellant's Lawyers by Exh. P. J. Further, in my view, the Appellant's application in response to which the grant was made should not have been considered and still less approved. It was invalid when it was made because the suit property which it applied for was not available for leasing. If the application had been made or approved after the expiration of the Respondent's original lease, the consequences would have been different".

Later on the learned Justice of the Supreme Court stated after a. review of another Supreme Court decision:-

> "...... In the instant case the Commission granted a lease and issued Title to the suit property to the Appellant when the Respondent's Title to the same was in existance and when it had no proprietary interest in the suit property until the expiration of the Respondent's Title. The Title issued to the Appellant was therefore null and void......."

In the instant case, the Plaintiff is not the holder of a Certificate of Title. I do not think that the absence of such a Certificate of Title by the Plaintiff strengthens in any manner the lease and Certificate of Title to Defendant No.1 which must be null and void by reason of its void root. Defendant No.2 after the commencement of the Plaintiff's lease, one month after survey, on or about the 8th March 1989, had proprietary interest in Plot 23 to allocate part thereof to Defendant No.1. If Defendant No.2 had nothing, it could not have passed any interest to Defendant No.1 be it clothed

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**with a Certificate of Title or not. In case the Plaintiff was** denied a Certificate of Title because of Defendant No.2's illegal decisions and similar decisions and acts of it\*. agents.

I was referred to the case of Kristofa Zimbe —vra— Tokana Kamanza (1952-56) ? U. L. R. 68 in support of the proposition that Defendant No<1's Title is impeachable save for fraud. The material facts of that case are different from the instant case. In that case the suit land was already registered when it was sold and the dispute was between two different buyers from the registered proprietor. 'ftiere was inexistance at the time of either sale of the suit property land with good Title in the hands of the seller. In the instant **case** Defendant No.2 never had any Title or proprietary interest to pass on to Defendant No.1. The case is therefore distinguishable from the present matter before me. For the same reasons the case qX- KatarikawA ~vrs~ Katwiremu and Another, 1977 HOB 18? is distinguishable. Its facts are similar to the of K. Z-imb-o -vs-T. Kamanza (supra), save that in the former, frafkl was proved and thus avoided the transaction complained of.

It was argued by counsel for Defendant No.1 that Defendant No. Vb Certificate of Title is protected by section 56 of the Registration of Titles Act and is conclusive evidence of Titles. This cannot be so. The proceedings previous to its registration cannot be described merely as ''informality or irregularity". The proceedings were totally null and void. As was observed in the case of Manji -vs-Begum 1957 E. A. 101 at page 103 if an agreement was void ab initio

> ''Nothing done subsequently could convert it into an enforceable contract".

The purported lease and Certificate of Title issued to Defendant No.1 was similarly void ab initio and could confer no protection upon Defendant No.1. For the same reasons section 184 of the Registration of Titles Act cannot come to the aid of Defendant No\*1«

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In the result, I find that the suit property known as Plot 27, comprised in leasehold Register 1841 Folio 11 which was sub-divided off Plot 23 belongs to the Plaintiff and not the Defendant No.1.

Defendant No.1's lease and Certificate of Title to Plot 27 is null and void. It must be cancolled from the Register. A permanent injunction is issued against Defendant No.1 restraining it, its agents, servants and or workmen from entering, remaining or interfering or otherwise dealing with Plot 27. An order for eviction of Defendant No.1 forthwith is granted.

Though this would have been an appropriate case for consideration of damages, the parties expressly excluded the issue of damages by this Court.

Finally, before I take leave of this case, may I say the ordinary people of this country descree to be treated with some respect and dignity by Government officials whose existance is intended to serve all the people of this country. The way the Plaintiff was treated by Uganda Land Commission and the officers of the Department of Lands leaves a lot to be desired.

Annythuntunes.

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F. M. S. EGONDA NTENDE J-U D G E $14/3/1995$

## 14/3/1995 9:04 a.m.

## Present

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Allan Shonubi holding brief for Mr. Mahazi for the Plaintiff. Muhanguzi holding brief for Mr. J. Kateera. E. Nakamwagi - Plaintiff. Muyanja - Court Clerk.

Judgment delivered.

Ammellin Turning. F. M. S. EGONDA NTENDE

JUDGE $14/3/1995$

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