Philadelphia Trade & Industry Limited v Kampala Capital City Authority (Civil Revision No. 15 of 2012) [2013] UGHC 271 (25 February 2013)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

### CIVIL REVISION No. 15 OF 2012

IN THE MATTER OF ARTICLES 26, 28, 42 AND 44 OF THE CONSTITUTION, SECTION 36 OF THE JUDICATURE ACT, CAP. 13 AS AMENDED BY THE JUDICATURE (AMENDMENT) ACT NO.3 OF 2002.

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IN THE MATTER OF THE JUDICATURE (JUDICIAL REVIEW) RULES, 2009

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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY WAY OF CERTIORARI, PROHIBITION, DECLARATION AND INJUNCTION

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PHILADELPHIA TRADE & INDUSTRY LIMITED APPLICANT **VERSUS**

KAMPALA CAPITAL CITY AUTHORITY **RESPONDENT**

| | | RILLING BY HON. MR. JUSTICE JOSEPHKMURANGIRA ANNEXED AFTERAVIT OF | | | |--|--|-------------------------------------------------------------------|------------------------------------------------|--| | | | | Williams Szienson Lany SWORN/DECLARED | | | | | $\pm$ 2013. | BEFORE ME THIS 12m DAY HT March $acamiania$ | | | | | Introduction | | |

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The applicant through its Lawyers Ligornarc Advocates brought this application for judicial review by way of Notice of motion under Articles 26, 28, 42 and 44 of the Constitution of the Republic of Uganda, Sections 36 and 38 of the Judicature Act, Cap, 13 as amended, Sections 98 of

'the Civil Procedure Act, Cap. 71 and Rules 6, •/, 8 and 9 at the Judicature'. (Judicial Review) -Rules, 2009 against-the respondent-tor the following orders; that:- '

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**1\*** (i) A declaration • that, the respondent's decision communicated to the applicant on-26,h day of April *£* 2012 purporting to nullify the applicant's 5 years- - . sublease offer commencing 1st May,. 2006 and extendable to a term of 49 years,'and the sublease subsequently created in favour of the applicant on the property comprised in LRV 2825 Folio 8 plot- 1-3 and 2-4 Station Approach Road, Kampala is null and void and illegal and an abuse of the respondent's discretionary powers.

(ii) A declaration that the' respondent's ' decision . communicated 'to the applicant on 26th day of April 2012 purporting to declare that the applicant has no proprietary interest in LRV 2825 Folio 8 plot 1-3 & 2-4 Station Approach Road,. Kampala is illegal', ultra vires,

■dnd\_~an—abuse—af--the- ' . respondent's discretionary powers;. '

(iij) A declaration that the respondent's refusal to formalize the applicant's application for a sub-lease extension for a period of 49' years in respect of LRV 2825 Folio 8 plots 1?3 So 2-4 Station Approach Roadarid a formal sublease in respect of plot'2A Station .' -. Approach'Road is unreasonable, irrational and illegal.

A declaration that the respondent's decision to re-. $\triangle$ enter the applicant's sublease comprised in LRV 2825 Folio 8 plots 1-3 & 2-4 Station Approach Road is illegal, irrational and ultra vires.

A declaration that the investigations and review $\mathcal{L}$ purportedly carried out by the respondents in respect of the applicant's sublease agreement were unconstitutional and an abuse of the respondent's discretionary powers.

A declaration that the applicant is the rightful and or $\mathcal{P}$ equitable owner of the property comprised in LRV 2825 Folio 8 plot 1-3 & 2-4 and plot 2A Station Approach Road.

1.2 The application is based on the following grounds:-

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- The applicant is the registered proprietor of a sublease $(i)$ on land comprised in LRV 2825 Folio 8 plot 1-3 & 2-4 Station Road, Kampala vide instrument number 367086 for an initial term of 5 years with effect from 1st May, - 2006, extendable to 49 years, having been grated the . same by Kampala City Council (KCC) the respondent's $20$ successor in title.

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(ii) The applicant applied for an extension of the above sublease to a full term and a sub lease in respect of plot 2A Station Approach Road to enable it commence developments of the said land.

(iii) On 14th March, 2012 the respondent made decisions purporting to cancel the applicant's sublease, the initial sublease offer and to re-enter the demised property after purported investigations into the applicant's

**&gt; . ...** acquisition of the sublease-carried our without offering the applicant an opportunity to be heard. . '•

- (iv) The said decisions . and /or orders are unconstitutional, illegal, ultra' vires the' jurisdiction,-. *, .* 'powers, authority and mandate of the respondent - (v) The '. respondent's orders and decisions are unreasonable and irrational as they, were -made without considering, the purpose for which the sublease was granted.-to the applicant and The investment already committed to the demised property. . ' ' . .

fvi) 'It is in the interest of justice that the'\*prerogative orders prayed for be granted to the applicant. '

- J I s which . 1.3 This application is supported by the. affidavit sworn'by Godfrey Kirumira, the applicant's Director' together with the exhibits 'and copies of documents accompany this notice of motion. / - . 1.4 The respondent is represented by the Directorate of • 'Legal Affairs, Kampala Capital City Authority. . The r"" respondent through M^isfiUtoCateb^ Litigation in the Directorate of-Legal Affairs of Kampala Capital City - Authority filed in opposition to this application an affidavit in reply sworn on 15th- October, ' 2012. In paragraph 13 of the affidavit in reply:-'

• Mr. Mugisha Caleb swore that:-' *"*

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"LL "The respondent shall raise aspreliminary point of law to'the effect that the present application was commenced outside the statutory-'period

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• • tor suits for judicial'review and. it. *has* not obtained leave of *court to* that-effect".

Indeed, in his submissions, counsel for the *respondent* raised the same preliminary objection, and submitted on it at length. . '

2. Issues framed by Counsel for the applicant ' '

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- *2.1.* Issues . raised by Counsel for the /applicant for determination by the parties and Court are contained in his written, submissions. They-are; that:' - (a) Whether the respondent's 'decision and action .can be challenged in a Court of law by way.of judicial review. *jq* ■(b) Whether or not the respondent acted legally, rationally and properly in refusing or arriving at the decision to reenter the applicant's lease. '

2.2 However,.under order 15 rule 2 of the Civil procedure zv Rules, issues, of'law and fact are to be determined as ^==^e.nd-wheBdhey=ere=reised-by^-peFty=Th.enet©Fe=ifdsdn^=^= &lt; accordance with the . law that, the respondent's ' preliminary objection raised in the affidavit in reply be determined before the above framed issued are considered and determined by court.

3. Whether this appi'cxiiio.n-.is..ii.rne barred

3. T Counsel for the respondent submitted that this, application was filed in Court out'of time.. He submitted ' that firstly, the-

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applicant brought this application seeking reliefs under the judicature Act which does not provide for revision. Revision is instead governed under Section 83 of the Civil Procedure Act, cap. 71. The grounds under the aforesaid Section are entirely different from those envisaged in the present application. In *S* reply to these submissions, Counsel for the applicant does not agree.

On perusal of this application it is clear that the application is for judicial review. In the application the applicant stated in the 1st paragraph of this application that:-10

...... Counsel for the applicant can be heard on the applicant's behalf for orders of judicial relief/review by way of................

Further in the heading of this application the applicant stated therein that:-

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"And in the matter of an application for judicial review by way of certiorari, prohibition, declaration and injunction"

The pleadings in the entire application are on judicial review. Wherefore, I do not know where counsel for the respondent got 20 the impression that the application was for revision.

Furthermore-it is the complaint by Counsel for the respondent that the application presently before the Court is incompetent.

ror non-corhpliarce with Section- 36 (7) of the Judicature Act,- . Cap. 13 cis amended. Section 36 (7) thereof provides:

• "36. (-7) An application for judicial review.shall be made promptly and in any case within three months the date, when the ground of the application, arose, unless the court has good reason for extending the period within which the application shall be made".

That this application is time barred.

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The affidavit in support of the application sworn by Godfrey Kirumira deponed on the 9th July, 2012 alludes to a letter dated 14th March, 2012 written to the applicant company informing it that the.respondent had investigated and reviewed the process leading to the applicant's sublease agreement and concluded that it was unlawful. . ..

**)/** In effect the letter of the respondent's Director of Legal Affairs brought'to the attention of the respondent the.'disposal flaws in respondent's re-entry. . ' *' . '*

Indeed the applicant having learnt of the re-entry immediately filed High Court civil Suit Nd. 127 of 2012 plus miscellaneous applications Nos. 235 of 2012 and. 236 of 2012 seeking interim relief from the High court pending disposal of the main suit. An intehmX>rGter\_was issued by His Worship, the\_Assisia.n.t..&egistrar.on the 23rd. March,\_2012 in this regard. The same'was extended until

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the applicant herein wrote to the Court withdrawing the main suit.

Counsel for the respondent argued that the application for judicial review was commenced on the 9th July, 2012, almost four months after the letter complained of was written and its $\checkmark$ contents brought to the attention of the applicant. That, therefore, the application presently before. Court offends the provisions of Section 36 (7) mentioned above since no court has granted the application an extension of time within which to challenge the respondent's decision. That in the absence of such an application, the application for interim order is based on two other applications that have no foundation in law and should therefore be dismissed with costs.

The case of Joseph Luzige vs UNRA; Misc. Application NO. 327 of 2012 cited by counsel for the applicant on the existence of " $a \cdot 15'$ bonafide substantive application pending...." And the pendency of a "competent" application supports the respondent's case that there is a no substantive application which is competent before the Court for the simple reason that the application is incompetent for non-compliance with the $2n$ Judicature Act, Section 36 (7) already referred to above regarding the bringing of an application for judicial review within 90 days from the date of the decision complained of.

1 agree with the -arguments by Counsel for the applicant that, . the- inherent power of the Courts'to ensure that the ends of justice are met should be exercised judiciously meaning that all . circumstances surrounding a matter should be taken into account vis-a-vis the law.'And where there are express provisions in a statute demanding that an act must be done 'within a •particular period of time failing which-Court may enlarge the .time for the doing of'such a thing, when an. aggrieved party does- not do the thing contemplated and'further does not move Court to extend and /or enlarge.the time fordoing such a thing, he cannot hide behind the inherent powers of the Court'to ' remedy . his dilatory conduct. -The question whether the applicant is guilty of dilatory conduct in bringing this application in Court shall be dealt'with in this ruling hereinafter.

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Again, in paragraph 9 of the affidavit in reply, Mr. Mugisha Caleb / . deponed that:- .

> " Thai on 14th March,-2012, the respondent wrote io h esa.pp 1 iaanLDofityjngjb.of.-the--d isposa I*41* aws-in-ihe process leading to the grant of the sublease and ' the respondent's intention to j re-enter' the property".

The respondent did not attach any documents to show that.the said letter was served on the applicant on -14th March, 2012. Yes; L.the letter was written on 14itLMarch.f4012, but is the evidence of • the applicant that it came to. learn ofjt much later.

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**I** In their submissions both, counsel for the parties *addressed this.* point of law. In my considered opinion, this is also a point of. law which should be sorted out at this stage before indulging in resolving the above framed issues. . . **. »**

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In his submissions counsel- for a respondent argued that paragraph 9 of the respondent's affidavit in reply indicated the • • disposal flaws in the applicant's obtaining of the sub-lease and • the respondent being a public entity cannot be expected to simply honour obligations whose foundations are not grounded in the lav/. That in effect the non-compliance with the disposal laws of- Uganda and the failure to obtain clearance of the Attorney General and the public procurement and Disposal of Public Assets Authority in itself is enough for this Court to find that • there is no basis for the present application.

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. This position was clearly elaborated, in the now famous case of. ■Nsimbe Holdings ltd vs AG & IGG: constitutional Petition No. 02-of ™2GG6-v/here4-he^Geffsf-Pfu-tion''Ql-G@'Utt-rulO'd-t-hatfailur-S-f-O-Obiainc^zz clearance of the Attorney General under Article 119 (.5) of the- • constitution of the Republic of Uganda makes the act or thing done null and void and of no legal effect. . D.

That since the non-compliance with the disposal laws relating to the suit property go to 'the root- of the matter, the Honorable Court cannot ratify such am illegality. In Makula International vs His Eminence Cardinal'Nsub.uga & anor fl980] HCB 11, if-.was

■held that cm illegality once brought to the attention of Court overrides all questions of pleadings including any admissions made therein. Counsel for the applicant argued.in his submission that this application is within the law. He prayed that the • respondent's objections be dismissed. '

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.1 have considered the affidavits evidence by both parties; and the .submissions by both counsel 'on -the 'two preliminary objections raised. Counsel for the applicant submitted that the • issue raised by the respondent in paragraph 13 of the affidavit in reply to the effect that this application is time barred. They further went ahead that the appellant's application was -filed within the. stipulated time of three months. Whereas the decision was purportedly made on T4fh March, 2012, the same was served on-to the applicant on 10th April,- 2012. This means that time began to run from the time when the applicant got to know 15 of the stipulated decision. The applicant filed this application on 9th July, 201-2,-which is still within'the stipulated time- of the 3

*2s"* Consequent to the above, and my further examination of the application being time barred; whereas rule 5 (1) of the Judicature [Judicial Review) ' Rules 2009 ' provides for ' an **I** application for judicial, review to be made within three- months ■[ from-the date when the grounds of the application" first arose, such a. provision. has been interpreted by this court' 'foL.be directory and'not mandatory.-In the case of Kuluo Joseph

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Andrew & 2 others vs The Attorney Generar &• 6 .others Misc. Cause No, 106 of 2001, Justice Yorokamu• Barnwine, (as he then was) held that; .

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1. " From my reading of the Judicial Review Rules in question, I get the impression that time limits • therein are more intended to ensure expeditious determination of the applications for judicial review.than to oust the jurisdiction of Courts, to hear the parties after the prescribed period. I.am • saying so-because the rules do not state the legalconsequences of failure of a party to comply with it. Like I said in Wakiso Transporters'Tours & travel Ltd & others vs IGG & others HCMC No. 0053' of ' 2010 (unreported), if the law makers intended it to be so strictly construed, it would have stated so in express terms. The issues in that case was the 56 days rule in Rule 7 thereof regarding filing of reply • to the notice of motion." Underlining is mine ofemphasis • .

2. "Even if Court were to accept the suggested strict *2-^* interpretation of Rule-5 (1) in connection with this matter, J would still find, \_as 1 did in Nampogo Roberta anor vs Attorney General HCMC No.0120 . of'2Q08, that there is allowance under-the said, rule for court to exercise a discretion in favour of an applicant, where Court considers that there is a good reason for extending the period within which the application shall be made, in the event of upholding the objection, the-.'application would -—be-struck out and the applicants—would-still be entitled to file yet another application for extension of time under Rule *5* fl) in the-sense that the, alleged illegality- would 'still subsist and

**be .** the state- of affairs 'would still. have to remedied''. Underlining is mine of emphasis

. In 'that regard, I agree that the three months period under Section 36(7) Judicature Act as amended by Act of 2002 and Rule 5 (1) of the Judicature (judicial review) Rules 2009, has been *£* interpreted by this Court to. be directory and not. mandatory. I. support and still support this legal position with the case of Kuluo Joseph Andrew s 2 others vs the Attorney'General '6 others Wise. Cause No.'106 of 2011.

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In Amiran Enterprises-Ltd vs Uganda Revenue Authority HCMA- 0 of'2010 my brother Judge, Justice Kiryabwire held that it must always be borne in mind that a prerogative orders are discretionary in nature and the court must act judicially and ' according to well.settled principles. Such principles may include common sense and justice; . whether, -the application is *i* • meritorious;, whether there is reasonableness; vigilance and not ^^any waiver d't rights by the applicant' ' - I 3

The decision in Nsimbe Holdings vs AG & IGG is cited out o.f context by the respondent and therefore not applicable' to this matter.' In the first place/that decision is a constitutional -To interpretation matter, seeking completely different- reliefs from . the present on which seeks prerogative orders. Secondly, the • illegalities complained of involved the formation .of a public ; company - premier developments ltd a subsidiary of NSSF

. -(whose shareholders were NSSF and Mr.. Onegi Obel-N'SSF's.then Chairman). The company, entered into a joint venture with A/lugoya Estates ltd to form a company .known as Nsimbe Holdings. Ltd (NHL). The same transaction (Nsimbe Holdings Ltd) was declared unconstitutional, null and void mainly on account 5 of not involving the Attorney General because the public was risking losing their savings (with NSSF) out of the deal. The •reasoning of the Constitutional Court is NSSF is a public body and could not form a joint venture without 'the involvement of Attorney General. Furthermore the formation of the Company itself was in breach of the Companies Act.

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The fact and circumstances of this case are fundamentally, different. The applicant is a. private company and is not forming . 'any joint venture with the respondent: The applicant .simply is seeking to. challenge the respondent's decisions', acts and 15 omissions which it feels are prejudicial to its interests.

pd^for^erreasoiis^iveiidieisiFi^boyedrv-fhis^ • . ruling the two (2) preliminary objections raised by the respondent are dismissed.

3.0 Resolution of the issues in this application by Court ZIo7 •

is **■3.1:-** Before .considering the -hereinabove raised . issues *it* important to note that the respondent's counsel in • his submissions never addressed, himself on the said issues'raised and argued by Counsel for the.applicant. May be, counsel for the respondent hoped that this'application could be solved at the Ji stage of his preliminary objections. In essence, therefore, I take if • that the'respondent was-not opposed to the submission by counsel for-the applicant in support of the framed issues for the . determination by this Court. • \* . •

It is also important to note that the respondent in its affidavit in I ° reply did not at all oppose the evidence that was adduced by the applicant through it's director, one Godfrey Kirumira. Allow •me for emphasis, therefore, to reproduce the pertinent paragraphs' of' Godfrey Kirumira's affidavit in support of this application and.that Mugisha Caleb, the affidavit in reply:- j

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[i] "Affidavit in support of the Notice of Motion

lz Godfrey Kjrumira

That sometime in or around 2001, the company conceived the idea of establishing a parking complex in 30 the city centre. Consequently, v/e approached several offices'including Uganda Investment Authority Ministry, of Finance and Economic Development to identify land for us to purchase-y/ithin the city centre for purpose^ot-our—- proposed business.- •

3. That we were referred to the.then Kampala City council where we. held several meetings with different '

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Department heads, including the then Mayor of Kampala City Council, His Lordship John Ssebana Kizito and presented our proposals.

That sometime in 2003, Kampala City council identified land situate in plots 1-3 and 2-4 Station road and plot 2A $\triangle$ Station Road approach which could be suitable for our project. Upon advise by Kampala City council, we submitted a formal application for a sub-lease in respect of the above land on 18th December, 2003.

That Kampala City Council then granted our applicant 10 on 20th July 2004, as can be shown by annexture "A". however, before a formal sublease agreement could be signed and granted; the applicant still had to go through time consuming and expensive processes that involved:

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A thorough review of the applicant's project and a site $\sqrt{5}$ (a) visit by public Health Officials. A copy of their report and their formal submission letter dated 19th August 2004 is attached hereto and marked "B".

Following up with the rezoning grant to change the $(b)$ user from open recreation grounds to multi storey $2^{\circ}$ parking complex use. The rezoning grant was finally given on 15th July 2005 as can be shown by a copy of the letter from the then Minster of Water, Lands and Environment, altached and marked "C".

Conducting an environment impact study and $2.5^{\circ}$ preparing an Environment Impact Assessment Report for National Environment Management Authority (NEMA)'s review before its issuance of a Certificate of Approval for the Applicant's project. Copies of NEMA 's letter dated 16th September, 2005 and proof of $3^{\circ}$ payment of fee is attached hereto and marked "D1" $-$ and D2".

(d) Holding meetings with NEMA officials to discuss concerns raised by its Impact Assessment Review as well as seeking professional opinions to advise on: $25$

appropriate corrective, actions and provisioning to address ihe. NEMA concerns. A .letter from NEMA' . containing its concerns is attached as annexture "E". . The certificate of *approval* was*-granted on '13,h* April, • 2006 after the applicant had fully addressed NEMA's *y* concerns. A copy of the certificate is 'attached hereto and marked "F". •

(e) Valuation of the land for purposes of creating the sublease .upon the request of Kampala City Council as can be shown by the former town Clerk's letter dated p 27fh July 2005 attached hereto-and marked "G". When the City Valuer failed to conduct the, valuation exercise. Kampala City Council then referred the ' exercise to the Chief Government Valuer as can be shown by letters dated 17th October 2005 and 2nd O November, 2005,attached .hereto and marked "H" and "1" respectively.

That.the land was subsequently valued by the Chief Government Valuer and the applicant assessed to pay a total of Ushs 15-7,500,000/= (Uganda Shillings One ^.o- - hundred-fifty seven willing five hundred thousand only) on-account of premium and ground rent *for the* prop\_ejjie=s\_comprjsed [rT^pJgt^l-3 and 2-4 Station Road . and Plot2A Station Approach-Road-as canbe shown by annexture "J". The applicant paid the said monies in full 2.3' as can be shown by Banker's cheques attached hereto. • as annextures "KI" and receipts attached hereto and marked "K2".

Thereafter, a formal' sublease agreement was finally executed between the applicant and Kampala C-ity 30 —-Council a sublease created ovet-tR-V-2825 Folio 1-3 & 2- 4 Station Road, Kampala for an initial term of 5 years with effect from 1st May 2006 •' extendable -for a term .of

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• 49yeors.. The sublease was registered -vide instrument' number 367086 of lsi June, .2006. ' '

Thai in a bid to fulfil the development covenant'in. the sublease the applicant took possession of the land and its shareholders' raised pari- of the capital costs J" • necessary for the project and sought to finance the ' . deficit of US\$.1.5,000,000 (United States Dollars Fifteen million only) from project lenders upon which the . project's implementation could begin.. •

io Thai however, ail the lenders we approached required p that the applicant obtains a full term of 49 years before funding of such 'magnitude could be extended to it. •\* Furthermore, the lenders also required the applicant to have a formal sublease over plot 2A Station Approach which is sandwiched between plots 1-3 & 2-4 Station *]'£* Road Road and in respect of which execution of a formai sublease agreement had not been concluded although premium and ground rent had been paid. The .applicant informed the Kampala . ' City Council . accordingly -which then advised the applicant -io formally apply for dispensation of the initial *5 years* term of*:*the sublease to the Council. . . . •

10. That consequently, on 8th July 2010 the applicant' m\_^.^:s.ubmiTted.jo.-\_theJ'.o.wn. Xlerk.^p. LKqmpal.g.;=Cit.yJ2p.uncjLa. forma! application.seeking an extension of the sublease 2\_p' .for the full term .in light of the circumstances and another application for a sublease in respect of plot 2A Station. Approach.:

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That as 1 followed up with the application I came to learn that the City Council sat and considered our application 2>o on 29th July 2010 and recommended that the sublease on'plots 1-3 and-2-4dSdaitcrn~Road be extended for 49 years and further that a sublease on plot 2A which fhe •applicant had earlier-on • applied and-paid for should ■also be granted. • \_• . • i

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![](0__page_17_Picture_6.jpeg) 12. That however, subsequently, it became difficult for us to follow up with our application because of the changes that were beginning to take effect following the establishment of the respondent Authority as a successor to Kampala City Council. Consequently, the $\zeta$ applicant engaged the services of Ms Ligomarc Advocates to follow up with our application.

13. That I am informed by Ms Joshua Ogwal, one of the advocates working with Ms Ligomarc Advocates whose information 1 verily believe to be true, that on $5th$ July 19 2011 the firm wrote to the Respondent's Executive. Director requesting for a formalization of the applicant's sub lease extension to a full term of 49 years and $a$ grant of a sublease over plot 2A Station Approach as recommended by the Kampala City Council.

That I am also informed by the said Joshua Ogwal that the firm wrote another letter dated 26th August 2011 to the Executive Director following upon on the matter. A copy of the said letter is attached hereto and marked. "O". I am further informed by Mr. Joshua Ogwal, that the $\lambda$ respondent did not respond to any of the firm's letters.

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That sometime in August, 2011, as I followed up the. matter with a records officer working with the respondent, I got to learn that the contracts committee. of the City Council convened a meeting on 28th April. 2 c 2011 where it discussed our application further but only. agreed to extend the applicant's sublease on plots 1-3 and 2-4 Station Road for 5 years from 1st May, 2011 to 30th April 2006 subject to the applicant paying outstanding ground rent arrears. The committee further 30 recommended that the applicant pursue a sublease of plot 2A with-the Kampala District Land Board and otherrelevant officers with the respondent which by then had been established and commenced operation.

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16. That as the recommendations of • the -contracts committee .were-inaccurate as the applicant had .paid' all its ground-rent in full,.! made a personal • effort • to meet with officials in the respondent Authority but to. no avail since the authority itself had not been fully *£* established and no one was willing to speak with us on record; .

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*17. I* **/** discuss the matter as soon as the investigations were complete. . Thai my personal attempts to meet with Ms. Jeniffer Musisi; the Executive . Director, to explain our -situation were unsuccessful as she was often reported to be In meetings and in the field. When I was finally able to call and talk to her on phone, she informed me that she had instituted ah investigation team to- look into the matter and advise her on the appropriate way forward. She also assured me that she would call us for a meeting to -

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That however, in view of the uncertainties arising from the respondent's transition at the time and for the sake - of safe guarding its interest in the land, the applicant 2.0 decided to obtain an assessment for the ground rentfrom'the respondent and consequently, paid a sum of •shs 38,020,090/= -(thirty six million twenty thousand ninety • shillings only). ....

19. -That sometime in March -2012,-I received, reports from ^5 various people informing -me that the respondent intended to re-enter the subleased land and repossess the land from the applicant.

**I ..** 20. **D** That to protect its interests, the applicant commenced HCCS No. 127 of 2012 against the respondent and 3 • obtained an interim order in Misc. <Application.no>. 236 of 2012-gnd-5ubsequently a temporary injunotion-in -Misc. Application . Mo-. 235 of 2012 restraining the respondent from evicting the applicant-from the land. . . •

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21... That on 10th-April, 2012, before the. hearing of Misc. • Application No. 236 of 2012; the applicant's lawyers were served with an affidavit in reply deponed'by a one. Ms • Josephine ' Karugonjo, a senior Principal Stale Attorney, in the respondent's Directorate of Legal Affairs 3" io which was attached a copy of a letter? dated 14th-March, 2012 allegedly written by the respondent's Director of Legal affairs purporting *to* advise the . company that the- respondent had investigated and • reviewed - the process leading, to the applicant's jo sublease agreement and come to the decision that the sublease was unlawful and of no legal effect.

. 22. Thai the letter further stated that the sublease extension . granted by Kampala City Council was similarly null and void and further directed the Respondent's Directorate M . of Physical Planning to take dll necessary steps and immediately re-enter the said land. The respondent relied on the same letter during the hearing of the • application for a temporary.

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That the applicant only came i'o learn of this letter on 20 10fh April, 2012 and has never been formally served with the same to date.- . **' 23.**

*24.* Thai 1 believe that the procedure adopted by the —, respondent in arriving at the above decisions and • ' directions is. manifestly illegal and unconstitutional as it -zy . did not afford the applicant an opportunity io be heard.

25. That 1 believe that the respondent made the above decisions without considering the'time, money and the good will that the applicant has so far invested and the ' inconvenience suffered in its pursuit of the proposed' 3 e project on the suit property, making such a decision-and *4*—--urdrrections irrational and unreasonable?---------

26. ' Thai J\_\_glso believe that the respondent's decision and or ; . directions are in contravention o.the principles of natural justice, illegal and are unconstitutional.- .

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That- 1 depong ibis affidavit in support of-applicant's .-application for a judicial review by. way of *certiorari,* ■declarations, prohibition,' ' mandamus, injunction, '. damages and costs of the application. -.

That it is in the interest of justice that the application is granted as I have been informed by Mr. Joshua Ogwai, \* the applicant's lawyer that there is no other appropriate legal remedy available to the applicant following the withdrawal-of our suit for. want of service of a statutory, demand. .

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(if) . Affidavit in reply

1, Mugisha Caleb

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2.. That 1 hve read the affidavit of Godfrey Kirumira Kalule and 1 have understood the contents therein 'to which 1 hereby respond. • . ' '

3. Thai the respondent is .a successor to the Kampala City Council having been established by the Kampala Capita! City Act, 2010 and is the registered proprietor of plot. 1-3- . • and'2-4 Station Approach, Kampala. ' • ' .

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TT—-4—.-Thai-.-ihe^applicani=herein--applied--do^ihe-.respondenK-io^-^-^ sub-lease land comprised-in L. RV 2825 Folio 8 Plot 1-3 and • 2-4 Station Approach measuring approximately. 0.525 2 s" hectares for five (5) years from the 1st May, 2006.

5. That the applicant was granted the sublease of the said plot of land for the purpose of constructing a multi-storey car parking complex.

6. Thai the . Kampala City' Council 'under Minute WWR 3G — 7^13/53/2010 considered themappiicant's application '.for ..-extension of the sublease for 49/years,\_q sublease-of plot . 2A Station Approach and the amalgamation of the said plots and-.'made • the recommendations stated - in • '

paragraph 9 of the Applicant's affidavit in support of the application:

That the Kampala City Council contracts Committee recommended that the sub-lease be extended for five $(5)$ . . years up to $16th$ April 2016.

- 8. That the Kampala City Council contracts Committee . recommended that the other issues relating to Plot 2A be followed up with the relevant KCC Departments and that the applicant pays ground rent, if any. - 9. That on the 14th March, 2012, the respondent wrote to the 10 applicant notifying it of the disposal flaws in the process leading to the grant of the sublease and the respondent's intention to re-enter the property. - 10. That the applicant subsequently instituted HCCS No. 127 of 2012 on the $23rd$ March, 2012 plus an application for a 15' temporary injunction and the respondent contested the validity of the main suit for want of issuance of a statutory notice against it.

11. That the applicant subsequently wrote to the Registrar High

- Court Land Division withdrawing the suit. - 12. That the applicant further filed Civil Application No. 15 of 2012 presently before Court on the 9th July 2012. - 13. .................

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Upon evaluating the above affidavits evidence of both parties, it is clear to me that the facts adduced by the applicant in the affidavit in support of this application were not challenged by the respondent at all. Save that in paragraph 9 of the affidavit in reply, the respondent relies on the alleged flaws in the process 30 leading to the gravity the sublease to the applicant.

In •fact the respondent in paragraphs 4,- 5,-6, 7, 8 and 9 *of the* affidavit in reply conceded to the evidence adduced by the applicant in its affidavit in support of this application. In.that respect, therefore, -do not see any reasons why the respondent •insisted on opposing this application. On this observation alone this application Would be allowed in-the terms and orders'being sought therein. . .

**1 zy** From the evidence on record,- from 2003 up to 14th March, 2012 Kampala City Council had no complaint against the applicant. The applicant confided in KCC as the controlling Authority of the . suit land and entered into lease agreements in respect of the'suit. properties/lands and subsequently paid all the ground rents and did whatever was required of by KCC so that if starts its project. At- this" point in time, the respondent which 'came into legal existence much later cannot on flimsy grounds' allegedly that KCC committed disposal flaws in the process of granting.the sublease to -the applicant.. If fault's were committed by . KCC, '. not be. visited against the'applicant dispossess, the applicant of ' • the suit land. My analysis is supported, by Section 114 of the Evidence Act, Cap. 6 Laws of Uganda which reads:

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■'" Estoppel ' ' ' '

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When one person has,; by his or her declaration, act . or omissiorp-^i-nientionally caused or permitted another person to believe a thing io be true and to . . ; . act upon that belief, neither he or she nor his or her . , representative- shall be - allowed, in. any suit' or - •

proceeding between himself or herself'-and-that person or his or herrepresentative, to deny the truth of that thing." '

; . In addition to the above, the-respondent never annexed to its . affidavit, in reply the alleged investigations report into the disposal process in the granting of the sublease of the suit lands to the applicant-.'Therefore, whether there, was any investigations done by the respondent or not has not been proved by the respondent. The letter written by. the respondent on ]4fh March, 2012 is not enough. . . . /<0

On the other hand, and. the above analysis notwithstanding, in order for respondent not cause great financial loss to the. applicant, if the respondent's predecessor (KCC) did not follow the PPDA Act of 2003 procedures in granting the sublease to the . applicant, the respondent is legal bound to validate the process. /S However, the respondent did -adduce evidence to show that there were any flaws in the process of granting the sublease to " the applicant,'other than stating sb in the letter it wrote-bn ]4fh March, 2012. • • .' ' •

In my considered view, this is such on application that would x<) have been settled by parties outside Court. A party should not go fora full trial of case for the sake of it. '

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**r '\* ii .** 3.2 I now turn to resolve the'issues as framed hereinabove.

3.2.1- Issue no 1; Whether the respondent's decision and action can be challenged in a Court of law by wayof judicial review.

Counsel for the applicant submitted that the respondent's decision and action can. be challenged in a Court of law by *\$* way of judicial review. Counsel for the respondent, it appear to me . he conceded to those submissions. He never addressed himself on this'issue in his submissions in reply. In that'respect I agree with the submissions, by Counsel for the applicant.

Under Article 42 of the Constitution, the respondent being a /o Public Body is enjoined to individuals and institutions that deal with' it fairly and justly failing which, an injured party may take out ' an action by way of judicial review under Section 36 (1) of the • Judicature Act (Cap. 13). . . . . • . . •

^Che esseTa^niT^emed^fjudfcidl review was well articulated JA' by Kasule J. (as he then wqsj in-the case of John -Jet T-umwebazevs Makerere University Council and 3 others Civil Application No.. 353 of-2005 where he pointed out that; "prerogative orders are remedies for the control of the exercise of power by those in public offices, and that in Uganda, prerogative .orders are now Jho an essential remedy in the judicial system under the collective • process dtiudicial review."; Zu. .

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'In the case of Mazarali Punjwani vs Kampala Disiricf Land Board & Anor; HCCS No. 07 of 2005 Justice Kasule (as/he then was), observed that: "judicial review is a legal process of subjecting to judicial control, the exercise of powers affecting people's rights and obligations enforceable at law by those in public office, *S* Further that, judicial review controls administrative action under . three heads; illegality, irrationality and.procedural impropriety.".

/.s In the case of Amiran Enterprises Ltd vs Uganda Revenue Authority HCMA - 06 of 2010 Justice Kiryabwire observed that: "if / must always be borne in mind that a prerogative orders are discretionary in nature and the Court must act judicially and according to well settled principles. Such principles may include common sense and justice; whether the application is meritorious; whether there is reasonableness; vigilance and not any waiver of rights by the applicant. It must be remembered that prerogative orders look to the control of .th e exercise and abuse of' power by those in public offices, rather .than at. =z==:=L2:Uro^Th^fihar^etei^nWion=:ot=privaiTTigJTts\_whiict:riT\*clone"in" '. *'* normal'civil suits." • - .

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Further, the tests to be met ahd considered by Court are- well articulated by Hillary Delany in his book' "Judicial review' of Administration Action " 2001 sweet and Maxwell at pages 5 and '• 7 6?. Where he writes: '

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• ."Judicial review is concerned no'fwjih the decision, but the decision making process. Essentially judicial . review involves an assessment of the manner in

**r.<** which a decision is made, it is not an appeal and the jurisdiction is exercised in a supervisory manner....... not to vindicate rights as such, but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality....."Underlining is mine of emphasis

From the facts of this case, it is not in disputed that the respondent is a public body established under the Act of Parliament -Kampala Capital Authority Act, to manage the 10 affairs of Kampala Capital City. It is also not in dispute that the respondent is a successor in title of the former Kampala City Council (KCC). As such, the respondent's actions taken and the decision made affecting the applicant in respect to the suit property are subject to judicial review by this Court. $1.5$

Issue no. 2 Whether or not the respondent acted legally, $3.2.2$ rationally and properly in refusing arriving at the decision to re-enter the applicant's lease.

Counsel for the respondent never directly addressed himself on this issue in his written submission. Counsel for the applicant $2^{\circ}$ submitted that the respondent did not act legally, rationally and properly in arriving at the decision to re-enter the applicant's leased plots. In his written submissions counsel for the respondent argued that the respondent took such decision to re-enter the suit plots based on the disposal flaws in the process leading to the grant of the sublease. The respondent did not adduce

evidence by attaching the investigation report they relied on inarriving at the disputed decision.

The letter containing the decision being complained of by the applicant is reproduced herebelow:

"On a headed paper as Kampala Capital City Authority, Directorate of Legal Affairs.

Date: March 14, 2012

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M/s Philadelphia Trade & industry Ltd.

P. O Box 6390,

Kampala.

## Re: NOTICE OF RE-ENTRY ON PLOTS 1-3 & 2-4 STATION APPROACH, ALONG JINJA ROAD, KAMPALA

The above refers.

We have reviewed the processes leading to the sublease agreement entered into on 19.05.2006 between the Kampala City Council (as "sub-lessor") and Philadelphia Trade & Industry Ltd (as "sub-lessee") for the purposes of ascertaining whether or not all due and lawful steps were taken and complied with to vest the said properly in yourselves.

The divestiture of any assets or rights of then Kampala City Council (KCC) by means including sale, rental. lease, franchise or auction was a "disposal" within the meaning of the Public procurement & Disposal of Public Assets (PPDA) Act. 2003. Accordingly, the disposal process leading to the award of the sublease by then KCC could only be lawful and therefore result into a valid and effective sublease agreement if it followed the successive stages in the PPDA Act including

solicitation of bids, examination and evaluation of .offers, and award of contract (lease). There is a further requirement of prior approval by the Attorney General • before execution of the agreement where the statutory . monetary threshold is exceeded.

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The investigations and .review conducted by KCCA revealed that the requirements under the PP'DA act. were not complied with ai ali; and accordingly , the sublease was unlawful and of no legal force or effect, it also follows that the purported extension thereof was /is similarly null and void, '

This notice therefore that M/s Philadelphia Trade & • Industry Ltd has no proprietory rights 'and-or interest whatsoever -whether as sub lesee. or otherwise -in the land owned by KCCA and known/described as LRV 2825 Folio 8 plot 1 -3 & 2-4 Station Approach, Kampala.

By copy hereof, the Directorate of Physical Planning is ' requested to take all necessary steps- (if any) and immediately re-enter the subject land and secure the same for and on behaif of KCCA.

• Sgd . Mike Okua . '' \* •

**cc:...**

=L2=Dire\_Gi.o.r=L.eg.aI=Affairs.;--------- - -. --------------- -

/ The decision made by this.respondent in. this letter has the .effect of affecting the applicant's rights in the suit land.

Having .made\_a finding hereinabove in this Tuling\_that the respondent's decision is subject to this Court's judicial review

jurisdiction, it is pertinent to establish whether there are-grounds" . • for judicial review. My considered opinion-in this regard is .that', there are grounds in this application upon which the Court can base bn to exercise its judicial review jurisdiction and discretion. In the case of Naiarali Punjwanivs Kampala District Land-Board & Anor; HCCS Mo. 07 of 2005 Justice Kasule,' observed at page 18. that judicial review controls administrative action under three heads; illegality, irrationality and procedural impropriety.

. J now'proceed to examine the respondent's conduct when it made the disputed decision under theabove three-heads: *j o*

## (i) illegality

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According to the case of Nazarali Punjwanivs Kampala District Land Board (supra.) page 18, Justice Kasule, held.that-illegality is when a decision, subject to review, is made contrary to the law empowering the decision maker. The test is whether the decision jy/ maker has acted or not acted within the law.

The decision to declare the-any-interest in the land as illegal is' illegal itself because the respondent does not have powers to ' make such declarations. It is not in dispute that the applicant held a sub lease registered over land comprised in LRV 2825 Folio Zb 8 plot 1-3 and 2-4 Station Approach. The land was subleased to. ^The'appliccht by KCC which was the registered proprietor upon • 'which'd .certificate' of title was properly created and issued to - '-fhe applicant after due and proper-payments of all dues and

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' L. • • 4 charged .and properly assessed by the respondent's predecessor. 'The applicant enjoyed its rights over the suit land from the time of the sublease upto 14fh. March, *2012 undisturbed* • by the lessor. '

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For the respondent to proclaim and deciare at this point in time 5" . . that the applicant's title as legally ineffective and proceed to purport to re-enter the land with affording the applicant a . hearing would be'unconstitutional: A declaration of this nature ' .effectively .deprives applicant of its property rights in its land without any form of independent investigations or court hearing. It is my considered opinion that it is only the Court of law of a competent tribunal that would have made such a declaration . after a hearing and fully satisfying itself of the facts before it. The respondent before it made its decision never head the applicant side of the story in respect of the suit land. '

Secondly, the declaration that was made by the respondent •' completely ignores the investment that the applicant-has made' \_\_^in ~fh is —suit—iand^wiihdb-e-aonsent-Q-WSC^Not-^onlv-^did=it=pgy=f\$C-<5=^=° •fully for premium pnd ground rent, it also paid (actually over paid) to KCCA itself for ground rent arrears assessed against it. By accepting to receive this payment, the respondent- cannot be seen to turn around and make such- a wanton declaration. The ' respondent's said action put it into a contractual relationship --m\_"vvifh the applicant. There' is no evidence that was adduced'by the respondent to show that-the .applicant was ever involved in any fraud or the aid. flawed process. The respondent in .its.

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**J . .. . •** decision was trying to take unjustified advantage over the applicant. . . ' . ' • • ' •

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The respondent cannot simply choose to- ignore thecommitments that its presuccessor made to the applicant and upon which the applicant relied 'upon to invest its money. If there were any impropriety in the procurement of the suit land, it is not . 'shown how the applicant vvas involved.'If the procurements were breached, they certainty not breached by the applicant. The culprits, if any, may be are within KCC and KCCA and it is upon the respondent to follow up with them. Otherwise the respondent-is bound by the agreements'or/and contracts that were entered into by KCC, its predecessor.

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**f 5** ' Thirdly, it is-trite law that a sitting tenant has to be-given the first opportunity to have his or her lease renewed. In other words, the sitting tenant's right of renewal of a lease (sub-lease] is automatic. In this case the respondent acted illegally when it ' =^^etus-ed-t-0^r-ehew=t-h'e^ years in respect to the suit land, even, when its predecessor, had recommended that the same be granted. Again, its decision to re-enter the suit land is also illegal. . •

Fourthly; the respondent mode the above impugned orders-.and '. decisions without" bffering~the applicant an opportunity^© be heard. This is a violation of 'article 28 (1) of the Constitution and violating the principles of natural justice. In. the affidavit in reply,.

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the respondent is not saying that it offered.the applicant an opportunity to be heard on the-allegations relied on in making hs disputed decision.

Owing to the foregoing/! make a finding .that the said decision and/ or orders are unconstitutional, illegal, ultra vires- -the *!>* jurisdiction, powers and mandate of the' respondent. They are . null and void and of no legal consequence and should not be left to stand as against the innocent applicant.

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(ii) Irrationality.

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**!•** *I S* Again in the case of Nazarali Punjwani vs Kampala District land ' /o Board (supra) the court observed at page 18, that irrationality is when the decision made is so outrageous in its defiance of logic or acceptable moral, standards that no person, could have, arrived at that decision. Underlining is mine of emphasis.

> . Counsel for the applicant submitted t-haf the decision reached *' s'* --by-the-res\_pj2ncLen.tnu.lli.f-yin.gd.he^Q-pplteanf^su b-leasedFFrespe'et-to^^3" the land comprised in LRV 2825 folio 8 plot 1-3 and-2-4 Station' Approach Road, Kampala and not to formalize its extension to a full term of 49 years, and to re-enter the suit land, and refusal to grant the-sublease in respect to plot-2A, is.irrational. •

It is not in;dispufe'thaT the applicant applied to KCC Tor landjlike many other ' people", have probably done in the past. "KCC through.its internal organs which the .applicant was-not.party to,

duly considered its application and granted it a sub-lease-which was paid for and proper title created. The applicant is not responsible for the procurement process in KCC. They cannot be faulted for applying for the suit land and their application being considered successful. If there are any wrongs that were S committed, then the persons in KCC (now KCCA) responsible should be held accountable.

Secondly, it is inconceivable that in arriving at its decision, the respondent could allegedly conduct an investigation without giving the applicant a chance to be heard. At the very least the applicant should have been given an opportunity to meet the investigations committee and state its case. For the respondent to sit somewhere behind closed doors and make such decision is unacceptable under the principles of natural justice. There was need for transparency.

Thirdly, these orders and decisions are unreasonable and -irrational-because they were made without due regard and considerations for the purpose for which the respondent's predecessor in title granted the said sublease to the applicant. The applicant's project was tediously appraised and evaluated 20 by different government organs including the Ministry of Health, NEMA and Ministry of Lands. All these organs gave their input and required the applicant to make different amendments to their proposals in order to safe guard public safety concerns.

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NEMA for example required several assurances to the public and. the environment that' required significant changes -to -the proposed project designs.-The;approval^ from the Minister of lands required a re-zoning'of the land from a public green to suit the applicant's project. For this to be achieved it' needed a J> study and recommendations-of the Town and-Country Planning. Board, the physical Planning'and Inspection Committee.

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All these .required, a Jot of time and resources, it goes without saying that the .applicant had to engage consultants .like structural engineers, ' architects, environmental, health and finance specialists who it had to call upon to meet the different requirements of the different Government bodies. In all the processes aforesfafed the Government departments '• and .agencies were'involved. In that process, the-Government of Uganda gave the applicant's acquisition of the suit land and the 1/ proposed project on the suit land a blessing. I do .not see any rightful reasons that I would use fault the .applicant in respect of

*Fourthly,* the project itself was meant to serve a public need Therefore the respondent's abrupt decision to deny the o *applicants* title and alienate the project is in the circumstances irrational and unreasonable.

Procedural impropriety

l In Nazarali Punjwani vs Kampala Dishici Jand Board (supra), the Court observed at page 19, that procedural impropriety is when rules and principles of natural justice, and / or failure to act with procedural fairness, are not observed by the decisions maker to the prejudice of the one affected by the decision. According to *S* me, it covers non-observance of procedural rules in the empowering legislation. Its test is whether the duty to act fairly. and the right to be heard have been observed.

The right to a fair hearing is constitutional and enshrined in Article 28 (1) of the Constitution. The right to fair and just treatment by 10 the administrative body is also enshrined under Article 42 of the Constitution. The rules of natural justice enjoin a body that intends to make a decision that affects another, to ensure that that other, ought not be condemned unheard.

$\overline{IV}$

In the case of Nazarali Punjwani vs Kampala District land Board 1. (supra), where the facts are similar in material particular with this instant-application. The applicant-was a holder of an expired lease and his application for renewal was refused. The lease was instead granted to the $2nd$ respondent. The applicant was not given an opportunity to be heard before refusing his application $20$ for renewal. The Court observed on page 21 that in considering application for a lease over it's land, the first respondent was required to act judicially by complying with the rules of natural justice in order to act fairly. That the rules of natural justice and the duty to act fairly necessitated that the applicant in that case- $-2S$

can be heard about his citizenship and on obligations jhai ne failed- to maintain the demised premises 'to acceptaole standards before being condemned. The Court concluded tnat the applicant was condemned unheard and no fairness was shown and thus the 1st respondent was found to have, acted with procedural impropriety.

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In the instant case, the respondent in its affidavit in reply is not disputing, the fact that the applicant was- not afforded an opportunity to be heard by the respondent before the decisions to cance1 its extended lease (refusal to formalize the full term] i o and before making the decision to re-enter the suit land.

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3.2.3 Issue no. 3 whether applicant is entitled io the reliefs sought.- ' ' - • .' ' .

Counsel for the applicant submitted that the applicant is entitled • to the reliefs sought in this application. In reply,-Counsel for the =^respobbeht^l3mi#eb.4-heT4hl5re3^ •it. should be-dismissed-with costs.' In essence, Counsel for the respondent is saying that the application is not entitled to the reliefs as claimed by the applicant..

Under Section 36(1) of the Judicature Act (Cap 13), the High court may, upon *'applicaTion forjudicial review, grant* dnyWe-ormore \* of the following \* \* \* reliefs in a civil or.criminal matter- \* " • — 1. An order *of*mandamus, *requiring any act. to be done;* '

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2. An order of prohibition, prohibiting any proceedings, or. •matter.. . ' . • ' •

3. An order of' certiorari, removing any proceedings *or mater .* into the High Court;

4-. Ah injunction to'restrain a person from acting in any office 3 • or matter.. '. • • • ' ' .

5. A declaration or injunction not being-an injunction referred'' to in paragraph (d) of-this sub-section.

6. Damages . ' . .

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As I have already noted hereinabove in this ruling the orders for /o declaration,, mandamus, certiorari or prohibitions are discretionary in nature. In exercising its discretion with respect to '' prerogative orders, the Court must act judicially and according to settled principles already discussed above. See the case of • ' John Jet Tumwebaze vs Makerere University Council and 3 others *14* Civil Application No. 353 of 2005(unreported).. .

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• The applicant is seeking, an order, of certiorari to move to this. Court to quash the decision and orders of respondent contained in a letter to the applicant availed to it on 26fh day of April- 2012 to the effect that,-

. (a) The sublease of 5 years of W May, 2006 extendable to *49* yedrFomfhe property comprised in LRVT2825"Fofio 8 plot 1-3 and'2^4 Station. Approach-Road, Kampala-granted . to the applicant by-the Kampala City.-Council the Asp

was unlawful and *of no legal* respondent's .predecessor,, force arid effect; .

(b) The applicant has no proprietary rights and or interest • whatsoever whether as a sub-lease or otherwise in the land described-as LRV 2825 Folio'8 Plot 1-3'and\* 2-4 3 Station Approach Road, Kampala.

• Again .the-applicant seeks'an order, of certiorari, to quash the decision of the respondent to cancel the recommendations of r the former Kampala City Council to: • ''

•(a)' Extend the applicant's sub-lease on in LRV 2825 Folio 8 plot 1-3 arid 2-4 Station Approach Road, Kampala for a term of 5 years up to 201.6.

(b) . Formalize the grant of the sublease for plot 2A Station Road to the applicant by the respondent

(c) Amalgamate in LRV 2825 Folio 8 plot 1-3 and 2-4 Station • Approach Road, Kampala to • ensure meaningful development. . .

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. In the case of John Jet Tumwehaze vs A/.akerer-s *University Council and 3 others Civil* Application *No. 353 of 2005, the Court* • stated that' on order of certiorari issues to. quash a decision' A which is ultra vires.or. ciliated, by an error .on the face of the record. **4 B •**

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In the case, of Nazarali Punjwani vs *Kampala District land* Board ■(supra) the Court on finding that the-respondent's- decision not ' *fVn*

to renew the lease was tainted with illegality and. procedural . impropriety, observed on page 31 that:.-.

"the applicant the Court is satisfied,'has made out a case to be granted.the order of certiorari quashing the decision of the first respondent of 11th March., '2006, granting a lease over the *£* property to the 2nd respondent, and denying the applicant a renewal of the lease over the property on the grounds that the said decision was taken with procedural impropriery and irrationality-." .

As given hereinabove in this ruling, .the facts and circumstances of this matter is similar in material particulars with Nazarali case. I have already made findings that in this case, .the impugned decision and orders were made by the respondent in total disregard of the rules of natural justice, were illegal, irrational and procedurally improper. As such this Court has the power and discretion to-quash the same decision. .

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(ii) Prohibition and injunction •

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The applicant ' seeks • an z=;fastraAing7T;AvEmtingmnd'stopp?'gChe respondervf, cny orAs ' • servants, or, agents however appointed from . executing, implementing or in any way giving effect to the decisions, orders or directions of the respondent contained in the impugned letter. .order of prohibition prohibiting, •

The *applicant also seeks on'injunction ..restraining, preventing -and stopping .the. respondent, any* of its servant or agent howsoever appointed from re-entering *the- property-comprised* **. '** *i*

in LRV 2825 Folio 8 plot. 1-3 and 2-4 Station Approach- Road,. Kampala. . . ' . • ' •

In. the case of. John Jet Tumwebaze vs Makerere University Council and 3 others Civil Application No: 353 of 2005, the Court • observed oh page. 10 that the order of-prohibition goes out to *£* forbid some act or decision which would be ultra vires. The Court added that while certiorari looks at the past prohibition looks at • the.future. His. Lordship in that case also observed, that an injunction issues to prevent and forbid the commission of some . unlawful or illegal act. From the above legal position, it is clear • that both prohibition-and injunction have the same legal effect.

Hereinabove;. I have already made a finding that the disputed decision and orders are illegal, irrational and procedurally. • improper. The same orders and decisions have not been implemented by the respondent but there are apparent threats to implement them to the prejudice of the applicant. Therefore ) L fhissa^p.r-OD.er^ease^foMhe^gr^nt^0-f=the-orders~Qf=pr-Q-hi-b.i.t-iQ.n^an-d^====^= injunction, against the .respondent. .

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## (iilj Mandamus;

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. The-applicant is also seeking-an order of mandamus compelling .the respondent to implement the recommendations of the Kampala City CounciTforforrndlize the sublease on LRV 2825'Fufro----- ~ 8 plot 2A Station Approach, and the sub-lease extension on plots 1-3 and 2-4 station Road. . . ' . - - ,

In the case of John JefTumwebaze vs Makerere University .'Council and 3 others Civil Application No. 353 of 2005,(supra), His Lordship observed at page 10 that a mandamus order is issued to order to compel performance of a statutory duty. It is used to compel public officers having, responsibilities in puolic offices S and public duties imposed upon them by the Act of Parliament.

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**>**

It is the applicant's case that the respondent's predecessor had . . recommended and granted sublease on LRV 2825 Folio 8 plot ' 2A. Station Approach to the applicant sublease oh LRV 2825 Folio 8 plot 2A Station Approach and a lease extension- for the property comprised in plots 1-3 and 2-4'Station Road.-However, the respondent refused to formalize both the' grant and the '• . ' extension. • . ' ' .

ft is my considered, view that the respondent as .the successor in title of former'Kampala City Council has'the statutory mandate ^tazf©|:molize--The--said-gFQnCQnd-e-x-tensi©n-ef4he-sul3leese^t®4he-- • applicant. The ' respondent hasreneged- on its Statutory obligation and must be compelled to perform its legal duties by . the issuance of the writ of mandamus.

, (iv) Declaration / 10

**43**

The applicant seeks declarations, that.

**I\* ' I**

**I**

**th '**

The respondent's impugned decision communicated to $\begin{pmatrix} \alpha \end{pmatrix}$ the applicant on 26th day of April 2012 purporting to nullify the applicant's sublease offer on the property comprised in on LRV 2825 Folio 8 plot 2A Station. Approach Road, Kampala is null and void and illegal, $\mathcal{S}'$ and an abuse of the respondent's discretionary powers. $\cdot$ (b) The said decision is illegal, ultra vires, irrational, unreasonable and an abuse of the respondent's discretionary powers;

The respondent's refusal to formalize the applicant's 10 (c) application for a sublease extension for a period of 49 years in respect of said land and a formal sublease in respect of plot 2A Station Approach is unreasonable, irrational and illegal.

The respondent's decision to re-enter the applicant's $\cdot$ $\cdot$ $\cdot$ sublease comprised in LRV 2825 Folio 8 plots 1-3 & 2-4 Station road is illegal, irrational and ultra vires.

$1\sqrt{ }$

$170$

$(d)$

The investigations and review purportedly carried out by . (e) the respondents in respect of the applicants sublease. agreement were unconstitutional and an abuse of the $2^{\circ}$ respondent's discretionary powers.

That the applicant is the rightful and or equitable owner $(f)$ of the property comprised in LRV 2825 Folio 8 plot 103 & 2-4 and plot 2A Station Approach.

In Amiran Enterprises Ltd vs Uganda Revenue Authority Case No. $25$ HCT-00-CC- MC- 06-2010, Justice Geoffrey Kiryabwire observed

that a declaration is defined as a pronouncement- by Court, after considering the evidence and applying- the law to that evidence, of an existing legal situation. A declaration enables .0. -. . party to discover what his/her legal position is, about the matter • of the declaration;.and thus o'pen'a way to .the party concerned y . . to resort to other remedies for giving- effect to the declared legal situation. • • *" '*

*I*

**(V)** Award of damages and costs,

(a) Damages' .

The applicant seeks herein the award of general damages for *t*0 . . the inconvenience suffered injury to business prospect and the good will-.of the project for which the lease application was • made and granted and costs of the application.

Under rule 8 of the Judicature (Judicial,review) Rules, 2009, the' ■'Court is empowered to. grant the' award of damages to' T----compeasctte^t.h.e2ap-pli-can-tdn-'de-ser-v-in,g^QOE)liGG-f.iQnsc^^'"~——

*I \*

From the applicant's affidavit in support sworn by its Director, it is evident that.the applicant has been inconvenienced by the respondent's aforementioned illegalities: ' -Certainly, therefore, • the applicant would be *entitled* to-damages.-In my view, the *^c> —Ramages* referred to should be special damages. In this instant '- .■ case-The applicant *according to its pleadings and* affidavit . . evidence has suffered general damages. . And in my view the • \* > \*'\*

**45** applicam . in • this application .for. judicial review cannot be awarded general damages. The applicant can recover general .damages from the respondent by filing.in Court a suit by way of a plaint. '

The conduct of'the respondent was condemned in a similar *J>* complaint by the Constitutional Court of Uganda.

**) £** In the Constitutional application no. 29 of 2011, Nasser Kiingi and Kalyesubula Winnie vs Attorney General; Kampala Capital City Authority and Kampala District land Board, Hon. Justice S. B. K Kavuma J. A, sitting as a single Justice, at pages' 19, 20 and 21 of his ruling held that:

**(**

**i I** ! i **• i**

**b**

**I**

" *My* appreciation of the applicants grievances with regard to their rights under. Articles 28 (1) and • 42 of the constitution', which I derive. from the evidence on record, is the complaint that when a decisiph.was taken to deny them extension of their 5 year initial lease term to a full term, of 49'years, they had had no opportunity to be heard over the and that this • .compromised their

*I* **\**

**>**

**•/I**

constitutionally protected. property rights and' • offended important principles of natural justice. This, in my view brings them within the ambit of the ' principle enunciated by this Court is Hon. Jim Muhwezi's case (supraj.

I am satisfied, iherefore^thai-even on*1* this *y*nmun *j ouriel*&gt; *alone, the principle of their haying suffered injury or . damage that.cannot* be *adequately compensate in monetary terms has been satisfied.. '*

Further, I consider it appropriate to emphasize that the $1st$ and $2nd$ respondents bear the responsibility of resolving the serious imperse, conceded by all the parties to this suit as existing over the important question of who should be in charge and control of the administration of land within the territorial jurisdiction of KCCA. The 1st and the 2nd respondents alone can determine the time frame within which that imperse can be resolved. In the meantime, the prevailing chaotic situation, which actually is, in my 10 view, a grave crisis in the management of this vital asset within the capital city of this Country, continues to adversely affect the applicants as citizens in whom land in this country is vested. Their property is commercial property over which the prevailing chaos and uncertainty poses dire consequences, not to mention a host of other stakeholders who, for no fault of their own, find themselves trapped into the tricky situation they attribute to the 1st and 2nd respondents." Underlining is mine for emphasis.

$\mathcal{L}$

$\sqrt{ }$

In that same ruling, Lam interested in the serious warming that was sent to the $2nd$ respondent (who is the respondent in this $\cdot$ case). The same warning is very relevant in this instant case. The said warning is at pages 21 and 22 of the said ruling, whereby 25 Hon. Justice S. B. K kavuma, J. A. had this to say:-

" the attitude taken by the $2nd$ respondent that after all, should there be damage occasioned to the applicants and the countless other stake holders, Government has the capacity to pay and would pay the colossal sums of money that may be

$172$

*payable in. damages* is, io say the least, -extremely . . . unpersuasive. It is important io realize that-such payments, if they become due, shall inevitably be effected using the heard earned tax *payers money.* Those entrusted with the custody and management of public .funds should always .be, in my view, guided by frugality and sound- principles of financial management to prevent avoidable waste of those funds. In the instant case, the sheer magnitude of the- injury and damage that may • . occur to the numerous stakeholders interested in the proper management of land in this country's capital city which would inevitably . result into extremely heavy payments in damages and severe damage to this country's economy as a direct consequence of the current vacuum and crisis in the administration and control of land within the KCCA jurisdiction, even in the interim, in my view, calls for • immediate . rectification of the situation', bv mandatory interim injunction orders." Underlining is mine for emphasis.

**4**

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## *(b) Costs* •

•)

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**3°** -^WjJ.fcMeg. QIXt~LQJX2QSts^e£lti. OE)22"ZrX3.fz("i.vibEEO-Cje.d. Urp-A-n^-Pnp—74 • Laws of *Uganda,. gives this Court the discretion to award, costs.* It ' is trite law that *costs follow the event in that the successful party should be. awarded costs, unless there is good cause'to the • <contrary.it> is because of the respondent's disputed decision that the applicant resorted to filing • this application and had it properly-' -prc3©cuted.. Obviously, • the 'apptican't": who is represented bydawyers incurred costs in the.litigation-process of this case. .*

■. In the result and for the reasons given.hereinabove.in this ruling, this application has merit. Accordingly, this application is allowed "in the following orders; that:-. ' ' ' • '

• 4 Conclusion . . ' . '

**.4**

*I S*

**5**

*IS*

**3^**

1. It is declared that: '. •

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**I**

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**I**

(i) The respondent's decision communicated to the . ' applicant on -26th -day -of April 2012 purporting to' nullify the applicant's 5 years sublease .offer commencing Ist May, 2006 and extendable, to a term of *49* years, and the sublease subsequently created in favour of the applicant on the property comprised in LRV 2825 Folio 8 plot 1-3 and 2-4 Station. Approach Road, Kampala, is null and void and illegal and .an abuse of the respondent's discretionary powers.

(ii) . The respondent's decision communicated to the applicant on 26th day of April. 2012 purporting tot. , re^hat—the—appliGan-t^ha-s^n'Q=propriet-ary= '■ ' • interest in LRV 2825 Folio. 8 plot l-3'& 2-4 Station • . Road, Kampala is illegal, ultra vires, . irrational, unreasonable and an abuse of the respondent's . .discretionary powers;

The • respondent's refusal to formalize the \_ applicant's application for cTsub-lease extension • -- for a period of *49* years in respect of LRV 2825 Folio g'plots 1-3 &2-4 Station road and a formal sublease *i~jfl* .

in respect of plot 2A. Station Approach is Unreasonable, irrational and illegal.

$(iv)$ The respondent's decision to re-enter the applicant's sublease comprised in LRV 2825 Folio 8. plots 1-3 & 2-4 Station road is illegal, irrational and **Ultra vires**

$\langle \vee \rangle$ The investigations and review purportedly carried out by the respondent in respect of the applicant's sublease agreement were unconstitutional and an abuse of the respondent's discretionary powers. $\langle vi \rangle$ The applicant is the rightful and or equitable owner of the suit property comprised in LRV 2825 Folio 8 plot 1-3 & 2-4 and plot 2A Station Approach.

$c_1$

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2. An order of certiorari to move this Court to set aside and quash the decision of the respondent contained in its letter availed to the applicant on 26th day of April 2012 to the effect that;

> The 5-years sublease granted to the applicant commencing 1st may 2006 and extendable to a full term of 49 years in respect of the property comprised এ ১ in LRV 2825 Folio 8 plot 1-3 & 2-4 and plot 2A Station Approach Road, Kampala was unlawful and of no legal effect;

The applicant has no proprietary rights and or interest whatsoever -whether as a sub-lease or otherwise in

$(ii)$

. the. land described as LRV 2825 Folio 8 plot 1-3 & 2-4 and plot 2A Station Approach. Road, Kampala; and . The;respondent intended to re-enter that demised land, such decision or /and orders by the respondent . are set aside and quashed accordingly.

**/ S**

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**1**

3. An older of certiorari to move this court to -set aside and quash -the decision of the respondent to cancel the recommendations of the.former Kampala City Council to:

(iii)

**j.l**

**"n**

- - (a) Extend the applicant's sublease on LRV 2825 Folio 8 plot 1-3 & 2-4 and plot 2A Station Approach' Road, . Kampala, for q term, of 5 years up to 201*6;* - (b) Formalize the grant of the sublease for Plot 2A Station '• Approach to the applicant by.fhe respondent; .and,' (c) Amalgamate plot. 1-3 & 2-4 and plot-2A-Station Approach Road, Kampala to ensure meaningful ' /s' development, such decision is set aside and'quashed. The • respondent shall comply with the said • ' ----- -------- ^^rec:gmmcndationscotd.he-thenaKamp:aLaceiiycC. Q,unc.iLz=2- and do the heedful' in favour of the applicant within ten (10) days from the date of this ruling. - a giving *4.* An order of *prohibition to prohibit,-restrain, prevent and stop the respondent,-any of\_ its servant or agent howsoever ppointed from: executing, implementing or in effect to' the decisions, orders or direction* or*f "the respondent contained in the impugned letter is granted-*

**■3**

5. An injunction restraining, preventing and stopping the respondent, any of its servants or agents howsoever appointed from evicting the applicant and re-entering the property comprised in LRV 2825 Folio 8 plot 1-3 & 2-4 and plot 2A Station Approach Road, Kampala is granted.

6. A writ of mandamus to direct the respondent to extend the applicant's sublease in respect of LRV 2825 Folio 8 plot 1-3 & 2-4 Station Road, formalize the grant of a sub lease in respect of plot 2A Station Approach and amalgamate LRV 2825 Folio 8 plot 1-3 & 2-4 and plot 2A Station Approach Road, Kampala to ensure meaningful development is granted.

$c_I$

This order shall be complied with by the respondent as quickly as is practicable, but not later than 10 (ten) days from the date of this ruling

7: The respondent shall pay the costs to the applicant.

Dated at Kampala this $25^{\text{th}}$ day of February, 2013.

MURANGIRA JOSEPH JUDGE

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