[1999] UGSC 28

# **THE REPUBLIC OF UGANDA** IN THE SUPREME COURT OF UGANDA **AT MENGO**

## (CORAM; ODER, KAROKORA, MULENGA, KANYEIHAMBA, MUKASA-KIKONYOGO, JJSC.

#### CIVIL APPEAL NO.10/98

#### **BETWEEN**

#### **KISUGU QUARRIES LTD APPELLANT** $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$ $AND$ <table> ADMINISTRATOR GENERAL .................................... **RESPONDENT**

(Appeal from the Judgment of the Court of Appeal at Kampala before His lordships Mr. Justice Berko, Mr. Justice S. G. Engwau, and Mr. Justice A.<br>Twinomujuni, JJ. A. dated 28^th January 1998, in Civil Appeal No. 46 of 1998 arising from H. C. C. S. No. 951 of 1993).

# JUDGMENT OF MUKASA-KIKONYOGO, JSC.

This is an appeal by Kisugu Quarries hereinafter to be called the appellant. It is seeking to reverse the decision of the Court of Appeal dated 28^th January 1998, which confirmed and upheld the judgment of the High Court dated 6^th October 1995 dismissing its claim.

The appellant is a non African Company within the meaning of Section 2 of The Land Transfer Act 1964. It is wholly owned by Asians. In 1970 the appellant was granted a lease by a Muganda called Paulo Kiddu Musisi who has since died, and is referred to hereinafter as the deceased. The lease was in respect of mailo land comprised in mailo Register Block 244 No. 903 at Kisuggu, hereafter to be referred to as the disputed property. The lease was executed on 25.6.70. It was the appellant's case that the requisite ministerial consent under the Land Transfer Act had been obtained in 1969 although it had no copy thereof.

$\mathbf{1}$

In 1972 the shareholders of appellant were forced to leave this country following the expulsion of the Asians by Idi Amin from Uganda. The disputed property which consisted of a stone quarry was taken over by the government and subsequently managed by the Departed Asian Property Custodian Board. It was later allocated to Kampala City Council which in turn leased it to a company known as M/s Stone Sales (U) Ltd. Following the enactment of **The Expropriated Properties Act 1982** the appellant acting through an agent with a power of Attorney obtained a repossession certificate under **that Act** which enabled it to successfully evicted Ms Stone Sales (U) Ltd from the disputed property and take possession ofit.

The appellant made attempts to register the, repossession ofthe leasehold in its name but were resisted by The Administrator General, hereinafter to be called the Respondent. Following the death ofthe deceased, the mailo owner, the Respondent obtained letters of administration to the deceased's Estate. He subsequently exercised the lessor's power of re-entry over the disputed property on the ground that the appellant's predecessor, had defaulted on a clause within the original lease of 1970 which required review of rent every 15 years. The Respondent threatened the appellant with eviction from the disputed property. To resist the eviction the appellant filed an action against the Respondent in the High Court contending inter alia that:-

- 1. The appellant being a repossessor of expropriated property was entitled to possession ofthe disputed property. - 2. The Respondent having failed to challenge the Repossession certificate in accordance with **Section 14 of The Expropriated Properties Act 9 of 1982** had no right to resist the Appellant's occupation ofthe disputed property. - 3. The re-entry by the respondent was null and void on the ground that there were irregularities in the notification ofthe re-entry.

For the Respondent it was argued that the repossession certificate was of no effect. The lease upon which the Appellant obtained repossession was null and void for want of ministerial consent under **Section 2 of The Land Transfer Act 1964**

Although several issues were framed at the trial in the High Court the most important one on which the case was decided, was the validity of the lease. The question which was determined was whether the lease repossessed by the appellant was null and void on account of lack of ministerial consent. Being a non African Company the failure to obtain it before execution and registration ofthe lease was detrimental to the appellant's claim.

To prove its claim in the High Court, the appellant adduced evidence of five witnesses namely a former Commissioner of Lands, a Registrar of Titles at the material time, the legal officer from the Departed Asian Property Custodian Board and the two directors of the appellant. Although the Respondent did not call a single witness the learned trial judge found in his favour. The learned trial judge held inter alia that the lease purportedly obtained by the appellant was null and void. The appellant had failed to prove that it had obtained the requisite ministerial consent to transfer the lease in its name in accordance with **Section 2 of The Land Transfer Act.** The learned trial Judge therefore, dismissed the appellant's suit on that ground alone.

Aggrieved by the dismissal of its suit, the appellant appealed to the Court of Appeal on the ground that the Respondent had failed to prove that the appellant had not obtained the requisite ministerial consent and that the disputed property was not expropriated.

Upon listening to the submissions of both counsel for the parties, the Court of Appeal dismissed the appeal and upheld the judgment of the High Court basically on the same ground and issue. The Justices ofthe Court of Appeal held that the appellant had failed to discharge the burden of proofto show that it had obtained the ministerial consent. The evidence given by the appellant's witnesses created a lot of doubt as to the existence of the ministerial consent.

Dissatisfied with the decision ofthe Court of Appeal, the appellant lodged this appeal in this court. It is based on the three grounds stated here below.

The first ground states that.

- **1. The learned Justices of the Court of Appeal erred in law when they made a decision by going behind/round the repossession certificate that had not been cancelled and or in any way challenged by the Respondent in accordance with the Expropriated Properties Act of 1982 and wrongly dismissed the appellant's appeal.** - **2. Alternatively but without prejudice to the foregoing paragraph, the learned trial judge and Justices of the Court of Appeal erred in law when they held that the appellant's lease was invalid for not having had a ministerial consent and yet the respondent's claim to have re-entered on the property depended on the terms of the said invalid lease.** - **3. Further in the alternative and without prejudice to ground No.2, the learned Justices of the Court of Appeal set a standard of proof too high for the appellant to prove that he had obtained the ministerial consent.**

The appellant is hence, asking this court to allow the appeal and make the following orders:-

- **(a) That the judgments of the Court of Appeal and High Court be set aside.** - **(b) That the appellant be granted the declaration prayed for in the plaint in Civil Suit No. 915/93 including relief against forfeiture** - **(c) That the appellant be granted any other relief that Court deems fit under Rule 3 of The Rules of this Court.** - **(d) That the appellant be granted costs of this appeal and both in the Court of Appeal and the High Court.**

I propose to consider the three grounds of appeal in the order in which they were argued by Mr. Matovu, learned counsel for the appellant. With regard to ground No.l; Mr. Matovu submitted that the decisions relied on by the Court of Appeal did not take into account the fact that the disputed property was property exposed to expropriation process.

The minister having granted a repossession certificate unless it was challenged by an aggrieved party within the meaning of **S 14 of Expropriated Properties Act** the issue of consent did not arise.

Firstly, relying on **S. 1.2(a) (b) of the Expropriated Properties Act,** Mr. Matovu argued that once the Departed Asian Property Custodian Board had taken over the property and managed it unless it handled it in accordance with **Act 9 of 1982,** all other laws regarding passing oftitle in such property were rendered unoperational.

**Section 1(2) (a) reads as follows:-**

*Any property or business which was vested in the Government and transferred to the Departed Asian Property Custodian Board under the Assets of Departed Asians Decree.*

| (b) | | | | | | | | | | | | | | |-----|--|--|--|--|--|--|--|--|--|--|--|--|--| | (c) | | | | | | | | | | | | | |

shall from the commencement of this Act remain vested in the government and be managed by the Ministry ofFinance.

**Sub-section 2 reads:-**

**For the avoidance of doubt and not withstanding the provisions of any written law governing the conferring of title to land, property or business and passing or transfer of such title it is hereby declared that;-**

- **(a) Any purchases transfers and grants of, or any dealings of whatever kind in, such property or business are hereby nullified and** - **(b) Where any property affected by this section was at the time of its expropriation held under a lease or an agreement for a lease or any other specified tenancy of whatever description, and where such lease or a tenancy had expired or was terminated, the same shall be deemed to have continued,**

and to continue in force until such property has been dealt with in accordance with this Act; and for such further period as the minister may by regulations made under this Act prescribe.

In support of his submission Mr. Matovu cited the case of Noordin Charama Walji Vs Drake Ssemakula Civil Appeal No.40 of 1995 (Supra) where it was held by this court that a re-entry made after the Act had passed, although under the Registration of Titles Act was null and void. All that the aggrieved party could have been entitled to was compensation. Secondly, it was Mr. Matovu's, submission that since the Respondent was not an aggrieved party within the meaning of Section 14 of the Expropriated Properties **Act**, he could not raise the issue of lack of ministerial consent.

### The provisions of Section 14 read as follows:-

"Any person who is aggrieved by any decision made by the minister under this Act, may within a period of thirty days from the date of communication of the decision to such a person, appeal to the High Court against such decision".

- $(2)$ Where the minister's decision is made in writing the same shall be deemed to have been communicated. - $(a)$ *Fourteen days after the posting where it is sent to an address* in Uganda and - $(b)$ Twenty one days after the date of posting to an address outside Uganda.

Thirdly, citing the provisions of Sections 56 and 184 of the Registration of Titles Act Mr. Matovu submitted that the respondent could not challenge the appellant's repossession certificate unless there was proof of fraud under Section 184 of RTA. Section 56 of Registration of Titles Act reads that:-

"No certificate of title issued upon application to bring land under this Act shall be impeached or defeasible by reason or on account of any informality or irregularly in the application or proceedings previous to the registration of the certificate and every certificate of title issued under any of the provisions herein contained shall be received in all

*Courts as evidence of the particulars therein set forth and the entry thereof* in the Register Book, and shall be conclusive evidence that the person named in such certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land therein described is seized or possessed of such estate or interest has such power".

Section 184 of Registration of Titles Act provides that:-

"No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor under the provision of this Act except in any of the following cases:-

> The case of a person deprived of any land by $\frac{d^2y}{dx^2}$ fraud as against the person registered as a proprietor of such land through fraud or against a person deriving otherwise than *a transferee bona fide for value from or* through a person so registered through fraud".

Counsel for the appellant criticised both lower courts for not addressing this issue of especially where the leases had been registered and unregistered. The Court of Appeal in fact wrongly relied on unregistered leases.

In reply Mr. Kanyeimibwa submitted that it was not correct for counsel for the appellant to say that the Court of Appeal went behind /round the certificate of repossession. It was not an issue in the Court of Appeal. He said that, he would have expected counsel for the appellant to show how the Court of Appeal went round the certificate of repossession.

We heard the submissions of both learned counsel for the parties. I take the criticism of the counsel for the appellant to be that both the High Court and the Court of Appeal wrongly ignored the certificate of Repossession. They should not have considered the issue of illegality when the appellant was in possession of a valid repossession certificate which had neither been cancelled or challenged in accordance with the Expropriated **Properties Act** or obtained through fraud. I agree with the submissions ofMr. Kanyeimibwa that Sections: 1.2(a) & (b) and Section 14 or any other provisions of **The Expropriated Properties, Sections 56 and 184** of **The RTA, Section 6 of The Limitation Act** and any other law were not applicable to the instant case ifthe courts found that the lease on which the appellant based its claim was null and void ab initio. The lease purportedly executed and registered in 1970 did not exist in law. The above cited provisions of the law as submitted by Mr. Kanyeimibwa could not create or give rights which did not exist.

**Section l.(2)(a) (b) of Expropriated Properties Act** would have been applicable if there had been a lease in existence even if it had been terminated by re-entry. The case of **Noordin Charama Walji V Drake Ssemaknla** (supra) is distinguishable from the present case. In that case there once existed a valid lease which was legally terminated by the mailo owner by re-entry. By operation ofthe provisions of **Section 1. & 2 of the Expropriated Properties Act** the lease was renewed or revived.

In the case of **Chris Akena Onapa Vs Mohammed Hussein Rashid Punjani Civil Appeal No.5 of 1955** (SCU)^it was held by this court that EPA was not applicable, since by the time the appellant had left Uganda his interest in the property had reverted to City Council. This Court held in favour of the Respondent, that there was nothing to repossess. In order for **Sections l(2)(a) and (b)** to apply to property affected it must have vested in Government when the lease, agreement for lease and any other specified tenancy was still in force. In the instant case there was no valid lease which vested in the Government when the shareholders ofthe appellant left Uganda. The mere fact that the Respondent enjoyed and exercised rights under the terms of what was honestly believed to be a valid lease but which was not did not, validate a lease which was null and void, because in fact it never existed in law.

I agree with Mr. Kanyeimibwa that there was nothing in the **Expropriated Properties Act** to stop the court from ascertaining an illegality or irregularity in cases involving allegedly expropriated properties. A court oflaw cannot sanction what is illegal. The old

and well known legal maxim **"Ex turpi causa non oritui actio"** is not confined to criminal cases only but applies to civil matters too.

Hence, Lindley L. J in his judgment in **Slaughter and May Vs. Brown Doering MC NAB and Company (1982) 2 QB 728** expressed the view that:-

**"No court ought to enforce an illegal contract or allow itself to be made an instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal if the illegality is duly brought to the notice of the court and if the person invoking the aid ofthe court is himself implicated in the illegality".**

The same principle was again enunciated in the case of**Phillips Vs Copping 1935 l. K. B 15 where Scrutton L. J. said at Page 21 that:-**

*"But it is the duty ofthe Court when asked to givejudgment which is contrary to a statute to take the point although the litigants may not take it".*

With regard to the submission that the Respondent should not have raised the issue of illegality because he was not an aggrieved party as it was rightly pointed out by Mr. Kanyeimibwa the Respondent was sued. He did not sue the appellant. He was not challenging the appellant's certificate of repossession. The issue of illegality was raised in defence but not as a basis ofthe Respondent's claim. For the same reason **Section 6 of The Limitation of Act** is not applicable to this case. The Respondent did not bring this action. The laws cited above and conduct of the parties in this case could not have validated a lease which was null and void ab intio. The Court of Appeal and the High Court rightly ignored the certificate of repossession. I disagree with the submission of Mr. Matovu that they went behind/round it. The certificate of repossession issued to the appellant had no effect. There was nothing to repossess. The criticism by counsel for the appellant that the Court of Appeal came to erroneous decision when it failed to apply the

provisions of **Section 14 of Expropriated Properties Act** was not justified. Ground one must fail.

¹ propose to take the remaining two grounds in the alternative together as the counsel argued them. There are two main criticisms in these two grounds.

Firstly it was argued by counsel for the appellant that both the learned trial judge and Justices of the Court of Appeal wrongly held that the lease was invalid for want of ministerial consent. Secondly, it was submitted that the standard of proof in this case was put too high by both courts, being a civil matter..

It is mandatory for non Africans to obtain the requisite ministerial consent under **The Section 2 of Land Transfer Act** before any transfer could be effected. Decided cases on this statutory requirement include **Motibhai Manji Vs Khursid Begum 1957 E. A 101,** In that case it was held inter alia that the consent ofthe Governor in writing was required to a transfer of mailo land. Further as the agreement was like in the instant.case prohibited by law and void ab initio nothing subsequently done could convert it into an enforceable contract. Similarly in the instant case subsequent issue of a repossession certificate could not validate the illegal lease. Hence, the decisions of both the Court of Appeal and the High Court that the appellant's lease was invalid for want of requisite ministerial consent could not be faulted. Other cases on this point include

**Singh Vs. Kulubya (1963)3 ALL E. R 499 - 1963 E. C. 142.** The second ground in the alternative must also fail.

Under the third ground further in the alternative it was Mr. Matovu's contention that ifthe Court of Appeal had taken re-entry and receipt of rent by the Respondent as estoppel to denial of the ministerial consent, it would have come to the right conclusion. I would have been persuaded by Mr. Matovu to accept his submission that on the conduct of both parties the ministerial consent must have been obtained if there was cogent evidence to support such a holding. It was a requirement of the law that ministerial consent was mandatory. The appellant should have adduced satisfactory documentary evidence even if it was secondary or verbal to establish the existence of the ministerial consent. In a somewhat similar situation it was held in the case of **R Vs Mitha 1961 E. A 568** that had there been evidence of a direction by the Governor under **Section 16 of the Interpretation** and **General Clauses Ordinance,** the court would have been entitled to presume that the direction had been properly given but the court was not entitled to presume that such a direction had been given without evidence.. Mere conduct of a party in itself cannot change or create or support rights which did not exist. The Court of Appeal would have been justified to take into account re-entry and receipt of rent by the Respondent into account as evidence of existence ofthe ministerial consent if there was evidence on a balance of probabilities to support it.

In my opinion the evidence adduced by the appellant before the trial court is weak and ridden with contradictions too. I disagree with counsel for the appellant that the Court of Appeal and High Court should have treated such contractions as minor. It was hard to reconcile them and cannot be treated as trivial or minor. Both the learned trial judge and the Justices ofthe Court of Appeal did not find the evidence ofthe appellant's witnesses to be of great value as reflected in theirjudgments. The learned trial judge described it as "useless collection of conjecture and speculation". In the words of Twinomujuni J. A in his leading judgment in the Court of Appeall he had this to say:- "the evidence adduced by the appellant helped to bury appellant's case rather than advancing it". I entirely agree with the views expressed by both learned judges. As the evidence stands on record I am unable to say that it was more probable than not that the requisite ministerial consent was abtained before the execution and registration ofthe lease in June 1970. See

## **Miller Vs Minister of Pensions - 1942 ALL E. R 372.**

In my view the appellant's evidence was below the standard of a balance of probabilities.. The Court of Appeal re-evaluated the evidence adequately. I am unable to fault the decision of The Justices of the Court of Appeal. They rightly dismissed the appellant's appeal. In the premises, the appeal to this court must fail, too. I would dismiss it with coststo the Respondent in this court and both in the Court ofAppeal and High Court

Dated at Mengo

Laetitia E. M. Mukasa-Kikonyogo **Justice of the Supreme Court**

## **IN THE SUPREME COURT OF UGANDA**

## **AT MENGO**

## **(CORAM: ODER, J. S. C.; KAROKORA, J. S. C.; MULENGA, J. S. C.; KANYEIHAMBA, J. S. C. AND MUKASA-KIKONYOGO)**

## **CIVIL APPEAL NO. IO OF 1998**

# **BETWEEN**

**KISUGU QUARIES LTD APPELLANT**

## **AND**

**ADMINISTRATOR GENERAL RESPONDENT**

(Appeal from the Judgement of the Court ofAppeal at Kampala Before Berko, Engwau and Twinomujuni, J. J. A. dated 28.1.98 in Civil Appeal No.46 of 1998 arising from H. C. C. S. No.951 of 1993.)

#### **JUDGEMENT OF ODER, J. S. C.**

c/ I have had the benefit of reading in draft the judgement of Mukasa-Kikonyogo, J. S. C. with which I agree. I have nothing useful to add. The appeal must fail. As Karokora, Mulenga and Kanyeihamba, J. J. S. C. also agree the appeal is dismissed. There will be orders in the terms proposed by Mukasa-Kikonyogo, J. S. C.

day of 1999. Dated at Mengo this

A. H. O. Oder

**JUSTICE OF THE SUPREME COURT**

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO.

# CORAM: ODER, KAROKORA, MULENGA, KANYEIHAMBA, **MUKASA-KIKONYOGO, J. JSC)** CIVIL APPEAL NO.10 OF 1998

#### **BETWEEN**

KISUGU QUARRIES LTD **.....................................**

**VS**

ADMINISTRATOR GENERAL ::::::::::::::::::::::::::::::::::::

(Appeal from the judgment of the Court of Appeal at Kampala before His Lordships Berko, Engwau, Twinomujuni, J. JA dated 28^th January, 1998 in Civil Appeal No. 46 of 1998 arising from H. C. C. S. No. 951 of *1993).*

### **JUDGMENT OF KAROKORA, J. S. C.**

I have read and I agree with the judgment prepared by my learned sister Mukasa-Kikonyogo, JSC, that this appeal should be dismissed with costs. I only wish to add that right from the facts as set out in her judgment all the members of the appellant company were non-Africans. The facts revealed that the company obtained lease of the suit land in 1970 without Minister's consent. Yet Section 2 of the Land Transfer Act (Cap 202) prohibited acquisition of land by non-Africans in Uganda without Minister's consent. Needless to say that the purported lease in 1970 which the appellant obtained without Minister's consent was null and void. See *Singh v Kulubya (1963) AH ER 499, Motibai Manji v Khursid Begun (1957) EA 101 and Broadways Construction Co. V Musa Kasule & 2 others (EACA) Civil Appeal No. 39 of 1971 (unreported)*

Secondly, on the issue of the property having been returned to the former owners under the Expropriated Properties Act 9 of 1982, it must be observed that before any property is returned to the former owners there must be in the first place have been property owned by the appellant in accordance with the law. If appellant's ownership lacked Minister's consent, then the purported lease was null and avoid ab initio. Therefore, the appellant had no property to vest in Government and eventually to be repossessed from the Government under the Expropriated Properties Act. Like this Court held in the case of *Chris Akena Onapa v Punjani (SC) Civil Appeal No. 5 of 1995 (unreported)* the appellant in the instant case had no valid interest in the leasehold property over which the Minister of Finance had issued Certificate of repossession, the appellant's interest in the lease property having been null and void ab initio.

In the result, this appeal should be dismissed with costs as proposed by my learned sister, Lady Justice Mukasa-Kikonyogo, JSC.

Dated at Mengo this day of 1999.

*A. N. KAROKORA, JUSTICE OF THE SUPREME COURT.*

# IN THE SUPREME COURT OF UGANDA **HOLDEN AT MENGO**

ODER, KAROKORA, MULENGA, KANYEIHAMBA, & MUKASA-CORAM: KIKONYOGO JJ. S. C.

CIVIL APPEAL NO. 10 OF 1998

#### **BETWEEN**

KISUGU QUARRIES LTD :::::::::::::::::::::::::::::::::: APPELLANT

AND

ADMINISTRATOR GENERAL ................................. RESPONDENT

(Appeal from judgment of the Court of Appeal (Berko, Engwau, and Twinomujuni JJ. A) at Kampala dated 28^th January 1998, in Civil Appeal No. 46 of 1998)

### JUDGMENT OF MULENGA J. S. C.

I had opportunity to read in draft the judgment prepared by Mukasa-Kikonyogo JSC., in which the facts of the case are adequately set out. I need not repeat them. The basis of the appeal is, as was the original suit, the claim that the Appellant is lawful owner of a leasehold title created in 1970 over the suit property. The suit property was expropriated under the Assets of Departed Asians Decree 1973 but was returned to the Appellant under the Expropriated Properties Act, 1982. The Appellant sued the Respondent because the latter had, as successor in title to the reversionary interest in the suit property, re-entered the same and caused the re-entry to be noted in the register of titles thereby extinguishing the said leasehold title. The Appellant's contention is that the re-entry was illegally noted and therefore null and void. The case, however, eventually centred, and was decided on, a different issue arising from the Respondent's pleading that the Appellant's lease was illegal. After hearing the evidence and arguments, the trial court decided that the leasehold interest, purportedly created in favour of the Appellant in 1970, was null and void by reason of illegality, the lease having been executed without the Minister's consent, contrary to s.2 of the Land Transfer Act (Cap. 202). The Court of Appeal upheld that decision. The appeal to this court was brought on three grounds framed in the alternative as follows:

- (1) The learned Justices of Appeal erred in law when they made a decision by going behind around the repossession certificate that had not been cancelled and or in any way challenged by the Respondent in accordance with the Expropriated Properties Act of 1982 and thereby wrongly dismissed the Appellant's appeal. - (2) Alternatively but without prejudice to the foregoing paragraph, the learned JJA., erred in law when they held that the Appellant's lease was invalid for not having had Ministerial consent and yet the Respondent claims to have re-entered on the property. - (3) Further in the alternative and without prejudice to ground No.2 above, the learned Justices of Appeal set a standard of proof too high for the Appellant to prove that he had obtained Ministerial consent.

^I am in total agreement with my learned sister, Mukasa-Kikonyogo JSC., that all three grounds of appeal must fail. ^I would only add a few observations for emphasis.

In order to sustain its suit, the Appellant had to plead that it was the owner of a leasehold title created by a lease dated 26th June 1970. That was the foundation for its claim without which it could not have maintained its cause

of action. It is after laying that foundation that the circumstances of expropriation and subsequent repossession of the suit property, as well as the Respondent's interference with the said title could and were pleaded. The necessary averments are set out in several sub-paragraphs in the plaint. The most pertinent are framed in the following manner.

#### $\mathbf{A}^{\prime}$ The facts constituting the cause of action are as follows:-

(i) The plaintiff is/was at all material times the registered owner of the leasehold ...................... on private mailo Register Kyadondo Block 244 Plot 903 at Kisugu (hereinafter referred to as the "SUIT PROPERTY") copy of the Certificate of Title with the lease agreement of 26^th June 1970 is annexed hereto and marked "A" "

In the next two sub-paragraphs it is pleaded first, that in 1972 the plaintiff's directors being Asians, fled the country as a result of which the Departed Asians Property Custodian Board took over management of the suit property; and secondly, that in 1992 the plaintiff through its agent applied for repossession of the suit property. It is then averred:

> "(iv) The Government of the Republic of Uganda returned the suit property to the plaintiff and allowed the plaintiff to repossess its property vide letter of repossession Form DAPCB dated 4^th May, 1993 a copy whereof is attached hereto marked "E" "

In the following three sub-paragraphs the plaint narrates, in unnecessary detail in my view, the steps taken by the plaintiff to take possession of the suit property, to sub-lease it, to apply for search of the Register of titles and registration of the letter of repossession. It is then finally averred:

> "(viii) It was revealed from the search conducted as above stated that, the Defendant purported to cause a re-entry to be registered vide INST. 254278 registered

*on 1st October 1992 on the grounds contained on the application which is annexed hereto marked "H" and the supporting Affidavit annexed hereto marked "I". Further, copy of the Certificate of Title reflecting the purported re-entry is annexed marked "J"*

*5. The Plaintiff shall contend at the trial that the purported re-entry was not done in strict conformity with the provisions of the law relating to re-entry and should therefore be declared null and void."*

It is evident from these pleadings that the Appellant founded its cause of action on its ownership of the leasehold title in the suit property, not on the letter or certificate of repossession. In a direct attack against that foundation, the Respondent's plea in its defence was:

> *"2. The defendant states that the alleged lease made in 1970 was illegal null and void in that there was no Minister's consent as required under Land Transfer Act.*

It was as a result of these pleadings that at the start of the trial the first agreed issue for determination was framed thus:-

## *"(D whether lease executed in 1970 is null and void."*

When the trial court decided the issue in the affirmative, the Appellant appealed to the Court of Appeal to reverse that decision and hold that the lease was valid. The Court of Appeal was not persuaded. In my view, it is not open to the Appellant now, to complain, as it does in its first ground of appeal, that the court made its decision "by going behind/around the repossession certificate." The repossession certificate was not in issue, or for that matter, relevant in the determination of the validity or illegality of the lease executed in 1970. It is noteworthy that the Appellant's proposition underlying its first ground of appeal, in this court, to the effect that the Court of Appeal was precluded from inquiring into the validity of the lease because the repossession certificate was unchallenged, was not canvassed in the lower courts. In my view, however, even if it had been, it is not sustainable in law. If the lease was illegal as contended, it was a nullity ab initio, namely from its creation in 1970. There is no legal basis for the suggestion that the issuance of the repossession certificate affected that status. The Court of Appeal was under obligation, as the trial court had been, to resolve that contention irrespective of the repossession certificate. No error was thereby made.

My other observations are in regard to the Appellant's contention that the Court of Appeal ought to have held that the lease was valid because the Respondent acted under it upon the re-entry, and alternatively because there was sufficient evidence to prove that the Minister's consent had been obtained. On the first alternative, ^I need only say that the conduct of the Respondent in acting on the lease by accepting rent and by re-entry, as if it was a valid lease, could not validate an illegal contract. A lease executed in contravention of s.2 of the Land Transfer Act is without any exception, an illegal contract. It is trite law that the court cannot be used to enforce an illegal contract even if both parties entered into it willingly. See MISTRY AMAR SINGH VS KULUBYA (1963) 3 All ER 499.

On the second alternative the Appellant's Counsel argues that the Court of Appeal set the standard of proof too high. With due respect to counsel, this is a misconstruction of the court's holding. In the leading judgment of the Court of Appeal, Twinomujuni J. A., after very thoroughly considering and reevaluating the evidence, agreed with the learned trial judge that the evidence on the issue of ministerial consent was "nothing but a useless collection of conjecture and speculation." He went on to conclude:

*"In my judgment this evidence only helps to bury the Appellant's case rather than advance it. I am satisfied that the evidence did not prove to any measure that the Minister had issued the necessary consent. In fact, I venture to hold that the consent was never obtained."* (Emphasis added.)

This holding is not to say that the evidence fell short of the required standard of proof. It is a holding that there was no/ proof of the fact in issue at all, and that the evidence, such as there was, proved the reverse. In my view the issue of standard of proof does not arise. The Appellant has not advanced any ground, why this court should, on a second appeal, interfere with that holding of the Court of Appeal, or why we should re-evaluate the evidence. ^I would therefore uphold the decision of the Court of Appeal that there was no proof that the Minister gave consent to the lease but rather that there was some evidence, albeit circumstantial, showing that he did not give the consent.

^I agree that the appeal be dismissed.

Dated at Mengo this ........... day of , 1999.

**J. N. MULENGA, JUSTICE OF THE SUPREME COURT.**