[2000] UGHC 47

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 561 OF 2000 (Arising out of Civil Suit No.132 of 2000)

CALTEX OIL (UGANDA) LTD :::::::::::::::::::::::::::::::::APPLICANT **VERSUS**

SALAMA ENTERPRISES LTD :::::::::::::::::::::::::::::::::::

BEFORE: THE HONOURABLE AG. LADY JUSTICE ANNA MAGEZI

I certify that this is a true copy of the original Registrar $O$ . Sign:.. Date:

R U L I N G

Originally the plaintiff (the respondent in this application) instituted a suit against the defendant (now the applicant in this application). The plaintiff sought a declaratory order that a purported agreement between him and the defendant was void abinitio as it purported to transfer land to a non African.

Before proceeding to hear the above suit and claim, the defendant/applicant raised a preliminary objection faulting the plaintiff/respondent's status $\overline{a}$ s $\mathsf{a}$ litigant. The defendant/applicant contented that the respondent/plaintiff had proceeded under S.134 of the Registration of T. les Act. That since the respondent/plaintiff did not fall within the provided class or category under the Act, he could not sustain an action under the R. T. A. The applicant/defendant enumerated the categories of potential litigants under S.184 of R. T. A which

**FES PAID** COURTS OF JUDICATURE

$\mathbf{1}$

**B**

excluded the respondent/plaintiff according to him.

The respondent/plaintiff opposed the application stating among other things that the application should not be granted a£ it would prematurely dispose of the claim without proper evidence and consideration and that this would be prejudicial to his case. He intimated that some fraud could have affected the transaction and therefore that he could have a cause R. T. A. He also faulted the applicant's counsel's statement that the action could not stand since the said prohibition to sell land to non Africans has been wiped away by the enactment of the Land Act. of action under the

Having listened to the arguments of both learned counsels and having scrutinized the record and perused the authorities cited, ^I make the following observations;

It is not apparent that the plaintiff/respondent proceeded under there would have been need to be in compliance with the listed categories of potential litigants such as mortgagee against a mortgagor*,* lessee misdirection of certificate e.t.c. a p^JTson deprived by fraud the provisions of the Registration of Titles Act in which case lessor against a

have perhaps fallen within the ambit of S.184 this matter. he would be a legitimate claimant with locus standi to prosecute under Section 184 of the R. T. A, On the other hand, if at all the plaint: f/respondent proceeded /) the deprivation claimed could (c) in which case

At this stage, the court cannot determine the issues with authority until proper evidence has been obtained. For example, could court at this stage determine that only government and not the respondent/plaintiff was defrauded? Question marks still linger why for example it took a complete year to register a transaction of sale. Was the transfer voluntary or fraudulently induced? These suspicious circumstances need clarification which can only be adduced in a proper trial.

Whereas the defendant applicant states that the prohibition relied upon, by the respondent/plaintiff, has been repealed by the Land Act the respondent on the other hand insists that the situation at that time when the transaction took place, non Africans could not obtain land transfers without the Minister's consent.

$\boldsymbol{R}$ rguements and counter arguments scantly mentioned the provisions of the Interpretation Decree. Since these arguments and evidence were not exhausted, it would be premature for court to make any informed decision in the circumstances. For example it would be necessary to prove whether any saving of action clauses existed after the enactment of the Land Act. It would also have been necessary to find out if the enactment was retrospective and validates any transactions of sale to non Africans e.t.c. All these important issues cannot be safely determined at this preliminary stage. To compound matters further, it appears that infact some Ministerial consent was obtained and land registered in the names of the applicant/defendant. That this consent was

obtained a year after the transaction. The case of Kisugu Quarries Ltd v Administrator General Civil Appeal No.10/98 (Supreme Court) agreement is prohibited by law and void abinitio, nothing subsequently done could convert it into an enforceable contract. held that if an

If the defendant/applicant could obtain land without thenot Ministerial consent*,* could this be validated a year later? Or if the Land Act removed the restrictive provision, could this affect a transaction that took place when the prohibition or still in force? Several questions remain un answered until a full trial is conducted. In such event, the present application cannot be up held. restriction was

The Attorney General of Uganda 1958 EA 765 where it was decided that preliminary points of law that need serious arguments need determination through a full scale trial. ^I am in agreement with such decisions as Katikiiro of Buganda v

Kisugu Quarries v Administrator General (supra)

Shah Miscellaneous Application No.579/2000 (High Court) Isaac Mulindwa v Kishorkant K.

Auto Garage v Moto Kov 1971 E A 514

The decisions in the above cases generally held that Order 7 rule ¹¹ should not be ' invoked where matters required serious investigations and questions of legal importance. considered opinion that the pending head suit is such one instance requiring proper investigations. The preliminary objection does not disclose a clear cut claim or disclaim. ^I am of the

^I therefore disallow the application and dismiss it with costs. The matter should proceed heard as contained in the pleadings. to be

Anna Magezi AG. JUDGE

• -'i •

"If leave is sought it could be orally made at the time of decision". There is need to seek leave before we appeal. Ruling read in presence of Bujkenya for applicant/defendant. Seeks leave to appeal under Order 39 C A Rules.

We think there is a question of law requiring examination. No objection if this could save time. Leave to appeal is allowed/Kangwamu for the applicant.

Date: original Registrar ,'Sign-iS'- ^I certify that this is a true copy ojthe

AG. JUDGE 2^/11/2000 Anna Magezi

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## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO.132 OF 2000.

CALTEX OIL (UGANDA) LTD------------------------------------

## **VERSUS**

SALAMA ENTERPRISES LTD -----------------------------------

## **ORDER**

AN APPLICATION to reject the plaint, coming for final disposal on the 28^th day of November 2000 at the High Court of Uganda at Kampala before the Honourable Lady Justice A. Magezi, in the presence of Mr. Byenkya for the applicant and Mr. Kangwamu for the respondent;

IT IS HEREBY ORDERED as follows:

a) That the application seeking the rejection of the plaint is dismissed.

$\mathbf{b}$ That the costs of this application be borne by the applicant.

Dated at Kampala this $\lambda$ day of $\overline{7}e\overline{h}$ . 2001.

$\mathcal{L}$

BYENKYA, KIHIKA & CO **ADVOCATES** [Counsel for the applicant]

FRWam<br>KANGWAMU & CO

**ADVOCATES** [Counsel for the respondent]

Given under my hand and the seal of this Court this 28^th day of November 2000.

Extracted by: Byenkya, Kihika & Co Advocates, 4^th Floor, Spear House, P. O Box 16401 Kampala.

Ke eer ved<br> $1/3/2001$ <br> GRihamp

TARY TO TUDIC TAB COURTS OF JUDICATURE - UCIANDA For $S^r$