Ssebunya v The Attorney General (Miscellaneous Cause 27 of 2021) [2023] UGHC 409 (7 August 2023)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT MASAKA**

#### **MISCELLANEOUS CAUSE NO.27 OF 2021**

#### **SSEBUNYA STEPHEN::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

#### **THE ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

# *Before; Hon. Lady Justice Victoria Nakintu Nkwanga Katamba* **RULING**

This Application was brought under Articles 45, 50(1) and 50(2) of the 1995 Constitution of the Republic of Uganda (as amended), Section 3(1)(2) of the Human Rights Enforcement Act, 2019, Rule 7 and 8 of the Judicature (Fundamental and other human rights and Freedoms) (Enforcement Procedure) Rules 2019 seeking the following ;

- 1. A declaration that the acts of the Respondent's agents ordering the Applicant to vacate his land comprised in freehold Register Volume 1154 Folio 19 Plot 63 Buddu Block 838 at Kamuganja, Mayanja Parish, Kakuto sub county, Kyotera District violates the Applicant's right to property under Article 26(1), 26(2) and Article 237(1) of the 1995 Constitution. - 2. A declaration that the acts of the Respondent's agents ordering the Applicant to vacate his the land without a court order and without being accorded a right to fair hearing is illegal and in violation of Articles 28, 42 and 44(c) of the Constitution and the Land Acquisition Act. - 3. A declaration that the acts of the Respondent's agents of ordering the Applicant to vacate his land deprives him of a right to equal treatment before the law under Article 21(1) and 237(1) of the Constitution. - 4. A declaration that the acts or omissions of the Respondent ordering the Applicant to vacate his land which he uses for gainful economic activities and without any alternative gainful economic activity accorded to him violates his right to life, human dignity and


adequate standard of living under Articles 22 and 45 of the Constitution of the Republic of Uganda.

- 5. A declaration that the acts of the Respondent's agents of ordering the Applicant to vacate his land which he uses for gainful self employment as a farmer and trade without compensation and or any alternative suitable economic activities violates his economic rights and development under Article 40(2) of the Constitution. - 6. A permanent injunction against the Respondent's agents restraining them from interfering with the Applicant's enjoyment of his constitutional rights. - 7. General damages. - 8. Punitive and exemplary damages. - 9. Costs of the Application.

The Application was supported by the affidavit of the Applicant were he states as follows that;

- 1. He is the biological son of the late Edward George Lito Lwanga and a grandson of the late Yonasani Muda Embuga who were residents of Kamuganja village, Mayanja parish, Kakuuto Sub county in the present day Kyotera District since the 1920s. - 2. His fore fathers were in actual use and occupation of the land measuring approximately 170 acres at Kamuganja village in the present day Kyotera District. - 3. His fore fathers having passed on, he and his siblings have been in occupation and use of the land. - 4. He has been the LC3 of Kakuuto sub county for 10 years and he has always been aware that on 5th May 1936, Sango Bay Estates Limited obtained a lease of 99 years from the Governor of the Protectorate of Uganda and the lease covered land measuring 146,000 hectares. - 5. Sango Bay was issued a lease certificate of title LRV 149 Folio 22 in respect of the land. - 6. The lease given to Sango Bay expressly excluded land belonging to the Applicant and as a result he processed a certificate of title FRV 1154 Folio 19 on Plot 63 Buddu Block 838 Kyotera District measuring 68.512 hectares in 2003 and the same still exists in the land office. - 7. As LC111 chairperson, in April 2012, he received a letter from the Permanent Secretary of the Ministry of Trade, Industry and Cooperatives wherein he was requested to mobilize


residents for a sensitization meeting before opening of boundaries of Sango Bay Estates Ltd's land.

- 8. Upon opening boundaries, the Respondent's agent included the Applicant's family land despite his protest. - 9. The Applicant and his family had peacefully enjoying occupation and use of the land until 20th October 2021 when the Respondent's agents led by the Resident District Commissioner of Kyotera District informed the Applicant that the Government had resolved to repossess the 146, 000 hectares given to Sango Bay and that the Applicant was given one month to vacate or face forceful eviction. - 10. He together with his family have been in occupation of the land for almost 100 years. - 11. The Respondent after the vacation order has since deployed security personnel to wit; the police and the army to implement the eviction. - 12. The order requiring the Applicant to vacate the land is discriminatory and was arrived at without according the Applicant a fair hearing. - 13. He has never received any compensation for the land.

An affidavit in reply was deponed by Lutaaya John Vianney, wherein he states as follows that;

- 1. In 1933, the suit land comprised in Lease hold register volume 149 Folio 22 measuring`146,000 hectares was allocated to Sango bay Estates Limited on very specific terms and conditions. - 2. At a cabinet meeting in May 2020, it was resolved that the Government of Uganda should repossess the land leased to Sango Bay. - 3. Sensitizing was done on the opening of boundaries and the process of boundary opening is still on going. - 4. A verification exercised was carried out and it was established that the Applicant's land is not part of land belonging to Sango Bay limited. - 5. No eviction orders have ever been issued against the Applicant. - 6. The newspaper article attached as evidence of eviction is hearsay and it does not constitute a legal eviction order.


7. During the boundary opening, the Applicant's land was not included in land belonging to Sango Bay.

In rejoinder, the Applicant stated as follows that;

- 1. The allocation of land to Sango Bay expressly excluded land that was occupied or in use by natives who include the Applicant's grandfather. - 2. There is no proof of cabinet minutes effecting the repossession of the land leased to Sango Bay. - 3. The Applicant visited the land office in Masaka and discovered that his certificate of title was not on the system. - 4. On further inquiry, he was informed that the certificate of title was cancelled by the Commissioner Land Registration on the basis that it was on Sango Bay land and the Applicant was given a copy of the letter issued inviting the Applicant to a public hearing. - 5. The letter was never served on the Applicant before the cancellation of his certificate of title and the certificate was cancelled without the Applicant being accorded a fair hearing. - 6. It is false for the Respondent to state that the Applicant's land was not included in Sango Bay land and yet it the same reason that was given for the cancellation of the Applicant's certificate of title.

Both Parties filed written submissions. The Applicant raised to issues for determination;

- 1. Whether the Applicant's human rights were infringed or threatened by the Respondent's agents. - 2. What remedies are available to the Applicant in the circumstances.

# **Submissions for the Applicant.**

It was submitted for the Applicant that it is not in dispute that the suit land is occupied by the Applicant and that it is not in dispute that government resolved to repossess the 146,000 hectares leased to Sango Bay Estates Limited in 1936 and the lease is represented by certificate of title LRV 149 Folio 22. It was submitted that this size of the land was never established as being exactly 146,000 hectares and that the lease was granted on the basis of


estimation. That the lease granted excluded all land occupied by the natives at the commencement of the lease term. Counsel relied on the provision of the lease agreement.

Counsel submitted that this concludes that the land lease to Sango Bay Estate as represented in the certificate of title does not exclude third party/Applicant's interests because the boundaries of the land were never ascertained through measurements/survey at the time the lease was offered because the land includes land occupied by natives.

It was then submitted that the Applicant's fore fathers have been in occupation of the land since the 1920s and that basis, the Applicant applied and was issued a certificate of title to the family land. That by a letter dated 11th March 2013, the Commissioner Land Registration confirmed that the Applicant's land is in the area where Sango Bay was issued a lease a title.

Counsel submitted that in the result, any re possession of Sango Bay estate limited's land measuring 146,000 hectares as represented by the certificate of title LRV 149 Folio 22 which was admitted to include third party rights as per the lease agreement, violates or threatens to violate the Applicant's fundamental rights and freedoms to wit; a right to own property under Article 26, a right to heard and treated fairly before any action for cancellation of the certificate or eviction can be taken under Article 28(1), 44(c) and 42 of the Constitution, the Applicant's right not to be discriminated under Article 21(1)(2) and 21(3) of the Constitution and the Applicant's right to carry on a lawful trade, or business under Article 40(2).

Counsel relied on the cases of Attorney General versus Salvatore Abuki, SCCA. No.1 of 1998, Eng. Pascal R Gakyaro versus Civil Aviation Auhority, COACA. No.60 of 2006 and the case of Caroline Turyatemba and 4 others versus the Attorney General and another, Constitutional Petition No.15 of 2006.

On the strength of the above submission, Counsel sought the declaratory orders referred to earlier on the ruling. Counsel also sought damages of Ugx. 100,000,000/= and punitive damages of Ugx.100,000,000/=.

## **Submissions for the Respondent.**

## **1. Whether the Applicant's human rights were infringed by the Respondent's agents.**


It was submitted that the Respondent never violated the Applicant's rights as alleged.

On the right to own property under Article 26, it was submitted that there was never any compulsory acquisition of the Applicant's land and that the Applicant never adduced evidence to show that indeed his land was taken by the Respondent. Counsel relied on Cooperative Ranching Society and 31 others versus Attorney General, HCCS. No.103 of 2010.

Counsel submitted that the Respondent raised an issue of the need to carry out boundary opening in order to come to an informed decision of whether the Applicant's land is part of Sango Bay Estates Limited land and without a current survey report, one cannot authoritatively state that the Applicant's land is part of the leased to Sango Bay thus reaching a conclusion that the Applicant's right to own property has been violated.

Counsel submitted that the Applicant insists that his land forms part of the leased to Sango Bay even though it is a fact that the Respondent disputes. Counsel submitted that the Applicant attached as evidence, a certificate of title issued in 2012. Counsel then stated that if indeed the Applicant's land duly formed part of Sango Bay, then the certificate was issued under fraudulent circumstances because there was already a subsisting title on the land and that the earlier issued certificate of title ought to take precedence. Counsel relied on Section 176(e) of the Registration of Titles Act and the case of Patel versus Commissioner Land Registration and 2 others, HCCS. No.87 of 2009.

He further submitted that the third party rights alluded to by the Applicant are very vague. Counsel submitted that the Applicant did not adduce any evidence to support the fact that his ancestors have occupied the suit land since the 1920s.

On the right to fair hearing, Counsel submitted that there is no evidence that the Applicant's certificate of title was cancelled. Counsel further submitted that there is also no evidence that an eviction notice was issued against the Applicant and that reliance cannot be placed on a News paper article because the contents therein are hearsay. Counsel relied on the case of MK Financiers Ltd versus Shah and Co. Ltd, HCMA. No.900 of 2014.

 On freedom from discrimination, Counsel submitted that there was discrimination against the Applicant. Counsel submitted that property is not a parameter under which the Court can determine discrimination and that the deprivation of land does not constitute discrimination.

On Economic rights under Article 40(2), Counsel submitted that the Applicant has not furnished any proof that he was indeed carrying out any lawful trade on the suit land and that all the allegations are merely assertions that are not backed by any evidence. Counsel further submitted that the Applicant has also not furnished any evidence that the Respondent has interfered with any lawful trade carried out by the Applicant.

Counsel submitted that there has been no boundary opening therefore it cannot be established whether the Applicant's land forms part of the land leased to Sango Bay Estates Limited.

Counsel concluded his submissions with a submission that the Applicant is not entitled to the remedies sought.

## **Submissions in rejoinder.**

Counsel submitted that it was not the Applicant's case that the Applicant was evicted from the land but rather that the Applicant's right to own property was being threatened when he was ordered to vacate the land by the Resident District Commissioner on the 20th October 2021. It was then submitted that the land leased to Sango Bay included land used and occupied by natives who among others included the Applicant's fore fathers. Counsel submitted that a blanket directive to repossess land leased to Sango Bay Limited threatened the Applicant's right to own property.

Counsel then submitted that the Respondent never pleaded fraud in his affidavit and therefore the Respondent's submissions on fraud should be disregarded because a party is bound by its pleadings. Counsel relied on the case of Interfreight Forward (U) Ltd versus East African Development Bank [1990-1994] EA 117 (SCU).

It was also submitted that according to lease agreement, the land leased to Sango Bay was partly occupied by natives and the land occupied by the natives was not subject to the lease. Counsel submitted that a lease granted on land occupied by another person is unlawful and


the lease granted to Sango Bay was null and void as far as it included land that was occupied by natives.

Further that the Applicant clearly detailed the genesis of his interest in the suit land which resulted into the Applicant being issued a certificate of title to the land.

On the right of fair hearing, it was submitted that the Applicant furnished proof to support the fact that his certificate of title had been cancelled. Counsel referred this Court to the letter dated 11th March 2013.

Counsel then submitted that the cabinet resolution to repossess the land leased to Sango Bay can only be implemented by eviction and yet no hearing was ever accorded to the Applicant.

On Economic rights under Article 40(2), it was submitted that the Applicant stated that he uses the land grazing over 150 heads of cattle and it was never challenged by the Respondent.

Counsel then submitted that though the Respondent submits that there is need for boundary opening and that the Applicant's land does not form part of the land leased to Sango bay, the letter dated 11th March 2013 from the Commissioner Land Registration confirms that the Applicant's land is on the land leased to Sango Bay.

Having carefully considered the affidavits in support and in opposition of this Application together with the submissions of both Counsel, I now proceed to resolve this Application.

## **Determination of Application.**

*Section 3(1) of the Human Rights (Enforcement) Act 2019* provides that; *In accordance with article 50 of the Constitution, a person or organisation who claims that a fundamental or other right or freedom guaranteed under the Constitution has been infringed or threatened may, without prejudice to any other action with respect to the same matter that is lawfully available, apply for redress to a competent court in accordance with this Act.*

*Section 4* of the *Human Rights (Enforcement) Act 2019*, provides that the High Court has jurisdiction to determine matters concerning enforcement of human rights guaranteed under the *1995 Constitution of the Republic of Uganda* (as amended).

Every person is entitled to enjoyment of fundamental human rights and freedoms which are not only derived from natural law but also from the Constitution and other international instruments. (see: *Patrick Obong versus Attorney General, HCMA. 224 of 2021*).

There is no dispute that the Applicant is in occupation of the suit land and neither is there a dispute that the Government resolved to repossess land that was leased to Sango Bay Estates Limited.

The Applicant's main contention is that the Respondent's acts of ordering him to vacate his land comprised in Freehold Register Volume 1154 Folio 19 Plot 63 Buddu Block 838 at Kamuganja, Mayanja Parish, Kakuto Sub county, Kyotera District, without according him a fair hearing violates his right to property under Article 26 and his right to fair hearing under Article 28, 42 and Article 44(c) of the Constitution. The Applicant also alleged that the Respondent's actions to him to the vacate the land deprives him of a right to equal treatment before the law under Article 21 and also deprives of his right to life and economic rights under Articles 22 and 40(2) of the Constitution.

It is my opinion that whether these rights and freedoms were violated or threatened largely depends on the whether there is proof of the fact that there was an order to vacate the suit land directed towards the Applicant by the Respondent or the Respondent's agents or whether the Applicant's land was ever taken over by the Respondent or the Respondent's agents.

Proof of the Applicant's case is on the balance of probabilities. (see: *Kamo Enterprises Limited versus Krystalline Salt Limited, SCCA. No.08 of 2018*).

On whether there was an order from the Respondent through the Respondent's agents directed to the Applicant to vacate the suit land, the Applicant relies on a copy of a newspaper article in the Daily Monitor dated October.

Courts have pronounced themselves on the admissibility of newspaper articles as evidence. Considering the authorities of *Attorney General versus Major General David Tinyefunza, Constitutional Appeal No.1 of 2007* and *Kamba Saleh versus Attorney General, Constitutional Petition No. 38 of 2012*, in both cases, the Court observed that newspaper


articles are inadmissible as evidence for being hearsay. None of the parties in the article was ever called as a witness to verify the information in the article.

It is therefore my finding that this Court cannot place any reliance on the newspaper article as evidence of an eviction order issued by the Respondent or the Respondent's agents.

Having disregarded the newspaper article, it is my observation that there is no other sufficient evidence to prove that the Respondent or the Respondent's agents duly ordered the Applicant to vacate his land or that the Respondent has since deployed security personnel in or around the Applicant's land for purposes of enforcing the eviction order.

The Applicant also vehemently contends that his land title was cancelled for being on the land leased to Sango Bay Estates Limited. It is my observation that the Applicant largely relied on a letter dated 11th March 2013 addressed to him from the office of the Commissioner Land Registration.

The letter from the Commissioner of Land Registration, relied on by the Applicant was a notification to him of the Commissioner's intention to rectify the Register having established that at the time a certificate of title was issued to the Applicant on 12/4/2012 vide instrument number 465845 there was already an existing title for the same parcel of land.

Section 91 of the Land Act under which the Applicant's title was cancelled provides as follows:

*91. Special Powers of the Registrar:*

*(1) Subject to the Registration of Titles Act, the Registrar shall without referring a matter to a court or a district tribunal, have power to take such steps as are necessary to give effect to this Act, whether by endorsement or alteration or cancellation of certificates of Title, the issueof fresh certificates of title or otherwise.*

*(2) The Registrar shall, where a certificate of title or instrument*

*(a) is issued in error call for the duplicate certificate of title or instrument for cancellation, or correction or delivery to the proper party.*


*(3) If a person holding a certificate of title or instrument referred to in Subsection (2) fails or refuses to produce it to the Registrar within a reasonable time, the Registrar shall dispense with the production of it and amend the registry copy and where necessary issue a special certificate of title to the rightful owner.*

The letter from the Commissioner Land Registration unequivocally sates that the title issued to the Applicant on 12th April,2012 was issued under the mistaken belief that there was no existing title for the same piece of land whereas not. That there already existed other titles comprised in Leasehold Register Volume 149 Folio 22 and Leasehold Register Volume 549 Folio 2 issued earlier in time. The Commissioner was therefore, well within her power to correct the error immediately upon realizing that it had been made.

Secondly, the Applicant was called to attend a public hearing if he had any objections to the cancellation. The District staff surveyor and the Secretary Rakai District Land Board were to be part of the meeting.

At this point, it is important to note that the Respondent and the Commissioner Land Registration are distinct, that is; the Commissioner Land Registration is a body distinct from the Respondent, with a capacity to sue and be sued. (See: *Section 182* of the *Registration of Titles Act* and the cases of *Edward Kabuyo Sentongo versus Bank of Baroda and Another, HCCS. No.166 0f 2002* and *Re. Kivulu, HCMA No.04 of 2018*)

The Applicant's land being part of Sango Bay Estates Land or the cancellation of the Applicant's certificate of title were issues raised and carried out respectively by the Commissioner Land Registration.

Whether or not the Applicant's certificate of title was cancelled without him having been accorded a fair hearing is an issue between the Applicant and the Commissioner Land Registration and the Respondent cannot be held liable for the actions of the Commissioner Land Registration in exercise of his functions under the Registration of Titles Act or the Land Act (as amended).

The Applicant ought to have sued the Commissioner Land Registration or made them a party to this Application however, this was never done. Considering the letter dated 11th March


2013 and the authority of *Edward Kabugo versus Bank of Baroda and another (supra)*, it is my finding that the grievances arising from the letter should have been raised against the Commissioner Land Registration and not the Respondent as was done is this Application.

## **Conclusion.**

Having observed that there is no evidence to support existence of an order to vacate the suit land issued by the Respondent or the Respondent's agents and that the Respondent is not responsible for the alleged cancellation of the Applicant's certificate of title nor for the assertion that the Applicant's land forms part of the land leased to Sango Bay Estates Limited, it is my finding that the Respondent has neither violated nor threatened the Applicant's rights in respect of the suit land.

This Application fails and is hereby dismissed.

Each party shall bear its costs.

I so order.

Dated at Masaka this 07th day of August 2023 and delivered by electronic mail.

**Signed;…………………………………**

**Victoria Nakintu Nkwanga Katamba-Judge**