[2024] UGHCCD 185

### **THE REPUBLIC OF UGANDA**

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

#### **CIVIL DIVISION**

#### **MISCELLANEOUS CAUSE NO. 0025 OF 2024**

# **THE REGISTERED TRUSTEES OF SHREE SANATAN DHARMA MANDAL:::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

#### **KAMPALA CAPITAL CITY AUTHORITY:::::::::::::::::::::::::::RESPONDENT**

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

#### **RULING**

This is an application brought under Article 26, 28, 42, 44(c) of the Constitution of Uganda, 1995(as amended); Sections 33 and 36 of the Judicature Act, Cap. 13; Rules 3, 3A, 6,7A and 8 of the Judicature (Judicial Review) Rules, 2009 for orders, and judicial reliefs that:

*1) A declaration that the Respondent's Resolution dated 18th December 2023, held under Minute KCCA 100/25/23 at the Respondent's Special Meeting by which it purported to adopt and implement a cancellation or rescission of the Applicant's estate and interest in the property at FRV 1290 Folio 4 Plot 110 William Street, Kampala, is ultra vires, irrational, and illegal.*

- *2) A declaration that the Respondent's Resolution dated 18th December 2023 held under Minute KCCA 100/25/23 at the Respondent's Special Meeting and its general conduct by which it is purporting to halt the redevelopment of Bat Valley Primary School and in general property comprised in FRV 1290 Folio 4 Plat 110 William Street is ultra vires, illegal and irrational.* - *3) An order of Certiorari doth issue quashing the Respondent's resolution dated 18th December 2023 held under Minute KCCA 100/25/23 at the Respondent's Special Meeting.* - *4) An order of Prohibition doth issue permanently restraining, preventing and/or forbidding the Respondent and/ or any of its agents from lawfully interfering with the applicant's interest and user rights in the applicant's estate comprised in FRV 1290 Folio 4 Plot 110 William Street, including the applicant's rights and interest pertaining to the management and/ or governance of Bat Valley Primary School, beyond what is permitted by law.* - *5) General damages.* - *6) Costs of the application.*

The application was supported by an affidavit in support affirmed by Mr. Rajendra Kumar Maganlal Vaya who briefly stated that:

1. That the Applicant has been the registered proprietor of the property comprised in FRV 1290 Folio 4 Plot 110 William Street, Kampala, since 2012 when their pre-existing leasehold interest was converted into freehold. That prior to 2012, the Applicant had held the property as a lessee since 1938.

- 2. The applicant is also the proprietor and founder of Bat Valley Primary School (formerly *Shardaben Rambhai Zarerbhai Patel Shree Sanatan Dharma Mandal School*), which is housed on the property. - 3. That the Applicant's proprietorship and management of the school were confirmed in HCCS No. 672 of 2000, following a court judgment sealed on 15th January 2002. - 4. That the school, is a Government Grant-Aided institution but owned, founded, owned, and seated on part the Applicant's land. - 5. That the school is governed by a School Management Committee comprising of 9 members, 5 of whom were appointed by the Applicant, while four were appointed by the Respondent to represent the interests of the parents. - 6. That the Applicant had introduced a proposal for redeveloping the school, including constructing new school structures and further utilizing the property for a secondary school and a teaching hospital, and that this redevelopment plan had been approved by both the School Management Committee and the Respondent's Central Division Council. - 7. That on 18th December 2023, the Respondent passed a resolution under Minute KCCA 100/25/23, which directed the Kampala District Land Board to cancel the Applicant's freehold estate and halted the proposed redevelopment. - 8. That the Respondent also reversed the collection of rent from the property, directing that the rent be paid to the Respondent instead, and that these actions were taken without prior consultation with the Applicant.

- 9. That the Respondent's resolution is ultra vires, unjust, illegal, and irrational. - 10. That the Respondent is claimed to have acted without legal authority in attempting to cancel the certificate of title, dictate the school's governance, and stop the collection of rent from the Applicant's tenants. - 11. That the Applicant further contends that the resolution was procedurally improper, as it was passed without affording the Applicant the opportunity to be heard.

The Respondent filed an affidavit in reply sworn by Dan Muhumuza the clerk to the Authority of the Respondent which briefly stated that:

- 1) That in December 2023, the Kampala Capital City Authority (KCCA) council held a special meeting, during which several resolutions were made. The council agreed to comply with Parliament's resolution to maintain Bat Valley Primary School as a Universal Primary Education (UPE) school at its current location. - 2) The council also adopted the Auditor General's recommendation to revoke the illegally granted freehold title to the Registered Trustees of Shree Sanatan Dharma Mandal (SSDM). - 3) Additionally, the council vetoed the Central Division Urban Council's resolutions pursuant to Section 34(1) of the Kampala Capital City Act, 2010 (as amended). - 4) The KCCA legal team was further directed to pursue legal measures to ensure the school is returned to KCCA, including setting aside the Kampala District Land Board order and the consent judgment.

- 5) That according to the Auditor General's 2016 report, the applicants had proposed relocating the school. Parents petitioned the government, requesting that the lease for the Registered Trustees of SSDM not be renewed and that KCCA refund the money paid by the trustees. The petition also emphasized that Bat Valley should remain a public UPE school at its current site and that the government should renovate the school. Furthermore, it called for all city schools to be preserved from relocation, and alternative land should be provided for the applicants' investment, aligning with the Auditor General's recommendations. - 6) That a 2015 Parliamentary Select Committee found Bat Valley Primary School was established by the SSDM family in 1938 and later taken over by the government following the 1972 expulsion of Asians. The committee upheld that the school was never declared expropriated property. In 1991, the school was repossessed, continuing to function as a UPE school. - 7) The Select Committee, in its findings, referenced earlier recommendations from a 2008 Parliamentary Committee on Social Services that the government should terminate SSDM's lease and refund their payment. - 8) That KCCA, under its mandate for physical planning and development control, exercises oversight over primary schools in Kampala, including Bat Valley, as provided by the Kampala Capital City Act, 2010.

The Applicants filed an Affidavit in rejoinder which briefly stated that:

- 1) That Respondents overstepped their legal authority and acted ultra vires in trying to cancel the Applicant's certificate of title, a power reserved for the High Court or the Commissioner for Land Registration under the Land Act, Cap 227, as amended. - 2) The Applicant denies the claims made in paragraphs 6 and 7 of the affidavit as hearsay and inadmissible. Furthermore, it is denied that the government took over the school in 1964, as the property was repossessed in March 1991 under the Expropriated Properties Act, 1982. - 3) The Applicant also refutes the claim that they intended to put up commercial structures, clarifying that the proposed development is for educational purposes, consistent with the land's use as a school site. - 4) That in response to paragraph 12 of the affidavit in reply, the applicant was not given a hearing by the authority before the authority made an impugned decision or resolution of 18th December 2023.

The following issues were proposed and adopted for determination by this Court:

- *1. Whether the resolutions dated 18th December 2023 of the Respondent's council rescinding the Applicant's estate and interest in the suit land were procedurally improper and irrational?* - *2. Whether the Respondent's resolution dated 18th December 2023 halting the redevelopment of the Applicant's land was irrational, Ultra vires or illegal* - *3. What remedies are the parties entitled to?*

The applicant was represented by *Counsel Kassim Muwonge* and *Counsel David Mukiibi* while the respondent was represented by *Counsel Jackline Atugonza*

The Parties filed written submissions that were considered by this Court.

## **DETERMINATION**

I will first determine the preliminary objections raised by the respondent.

1) The present application is premature as the applicant has not exhausted the available administrative remedies.

Counsel argued that the applicant ought to have moved the Minister for Kampala and Metropolitan Affairs to exercise, administrative veto powers and/ or rescission of the decision it considered ultra vires or illegal hence this application was incompetent and premature for failure to do so.

Counsel for the applicant argued that the above remedy was not internal to the Respondent but rather outside and required cabinet approval which was an extremely onerous, impractical and inaccessible remedy.

I acknowledge the existence of an alternative remedy for the applicant however this case demonstrates extenuating circumstances that require the Court's indulgence by way of judicial review to resolve the dispute.

2) The second was that this was not a proper matter for judicial review.

The respondent submitted that the applicant sought to challenge the decision rather than the decision-making process. That the applicant throughout its affidavit asserted its rights as the holder of the freehold title and baseless accusations of the long-term desire of the respondent through its Lord Mayor to re-expropriate or compulsorily deprive the applicant of its estate, interest and rights over and in relation to the property and the school.

Counsel also argued the applicant sought to enforce private rights and had no element of public interest.

I shall not delve into this preliminary objection as it touches on the merits of the case and should have been framed as an issue rather than brought as a preliminary objection.

The first and second issues shall be resolved together as they pertain to the same resolution.

*Whether the resolutions dated 18th December 2023 of the respondent's council rescinding the applicant's estate and interest in the suit land were procedurally improper and irrational?*

# *Whether the respondent's resolution dated 18th December 2023 halting the redevelopment of the applicant's land was irrational, ultra vires or illegal*

The applicant argued that Bat-Valley Primary School was a government grant-aided institution as defined by Section 2(1) of the Education (Preprimary and Post-primary) Act, 2008, which specifies that such schools are not founded by the government but receive statutory grants and are jointly managed by the foundation body and the government. This management structure was also affirmed in the consent judgment in *HCCS No. 672 of 2000, The Registered Trustees of Shree Sanatan Dharma Mandal v. Kampala City Council*, which established a school management committee with five members, including two representatives from the Respondent.

The Council of the Authority at its special meeting held on Monday, 18th December 2023 under Minute KCCA 100/25/23 considered the status and future of Bat Valley Primary School and made some recommendations among which were that;

- i. It directed the Kampala District Land Board to cancel and rescind the Applicant's freehold estate and interest in the property - ii. Halted the proposed re-development of the school and the property iii. Stopped and/or reversed the payment of all rent being collected from the property by the applicant and directed that the said rent be paid to the Respondent.

The applicant argued that in passing the impugned resolution, the respondent acted ultra vires and with illegality. Counsel referred to the case of *Ojok Alphonse & 4 others v. Gulu Municipal & Pece Division Local Council* (HCC No. 32 of 2006), Counsel emphasized that any action by a corporation exceeding its powers violated public policy and was therefore null and void.

The applicant's counsel argued that the respondent created under the Kampala Capital City Act, 2010 had absolutely no powers to cancel a Certificate of Title neither does it have the authority to adopt and implement any decision to cancel a Certificate of Title. He argued that only the High Court under Section 177 of the Registration of Titles Act Cap 230 and the Commissioner Land Registration under Section 91 of the Land Act, Cap 227 had the powers to do.

The applicant also contended that the respondent's actions in dictating the redevelopment of the school were irrational, unreasonable, and beyond its legal authority, as no law grants the respondent the unilateral power to veto a school's redevelopment plans. This was because decision-making by the school lies in the hands of the school management committee and not the respondent's local government and although the respondent had Representatives on the committee, the decision-making was by a majority vote and hence the decision was ultra vires, illegal, and should be quashed.

Counsel for the applicant further submitted that the respondent also purported to halt rent payments to the applicant over the use of its property which was ultra vires the respondent's powers.

On the other hand, the respondent's counsel argued that the matter of cancellation of title was moot since it was the resolution of the council that: Council adopts and implements the Auditor General's recommendation that the Kampala District Land Board rescinds/cancels the Freehold Title that was illegally and irregularly granted to the Registered Trustees of Shree Sanatan Dharma Mandal (SSDM) in respect of Bat Valley Primary School. Implementation of the decision could not be considered as vesting the Respondent with powers to cancel title by any stretch of imagination.

Counsel argued that part of the resolutions required that KCCA management and the Legal Department be directed to pursue legal processes to ensure that KCCA Management and the school is returned to KCCA including setting aside the Kampala District Land Board (KDLB) order, litigation, and applying to set aside the consent judgment among others to ensure that this fraudulent process is overturned.

Counsel for the applicant reiterated that the respondent and by extension, the Auditor General did not have powers to cancel a certificate of title as these powers are vested in the High Court and Commissioner Land Registration under Section 177 of the Registration of Titles Act, Cap 230 and Section 91 of the Land Act, Cap 227 respectively.

Furthermore, the applicant argued that the respondent violated their right to a fair hearing, as guaranteed by Article 28 of the Constitution of Uganda, and the right to just and fair treatment before administrative bodies under Article 42. They pointed out that the respondent admitted in paragraph 12 of its submission that it did not provide the applicants with a hearing, erroneously suggesting that the Central Division Urban Council conducted it. Citing *Alex Nyika & Anor v. The Commissioner Land Registration, High Court Misc. Cause No. 2559 of 2022*, the applicant emphasized that procedural propriety requires adherence to the rules of natural justice, which demand that the accused must be informed of the accusations, be given an opportunity to present their case, and that the tribunal must act impartially. The applicant submitted that the respondent failed to meet these requirements, as they were neither called, informed, nor heard before the impugned resolution and decisions of 18th December were made.

The respondent's counsel argued that the decision to halt the redevelopment of the applicant's property, where Bat Valley Primary School is situated, was not procedurally improper. Counsel clarified that the decision was made by the respondent itself, as stated in paragraph 12 of their affidavit in reply, and not by the Central Division Urban Council, as claimed by the Applicant.

Regarding the legality of halting the redevelopment, counsel submitted that this cannot be considered a final decision, as the resolution was subject to approval under the respondent's Physical Planning Act, 2010. Additionally, Section 19(h) of the Kampala Capital City Act gives the Executive Director the duty to implement lawful decisions made by the council. The applicant failed to provide evidence that the Executive Director or the Physical Planning Committee had implemented the council resolution to halt the redevelopment.

On the issue of rent collection, the respondent's counsel submitted that the matter was primarily based on the recommendations of Parliament and the Auditor General. As noted in paragraph 9(d) of the respondent's affidavit, the applicant had not shown that these recommendations or resolutions have been implemented, making their concerns premature. Moreover, the Applicant did not demonstrate how the respondent had interfered with the school management committee. Counsel further argued that under Section 8 of the Education (Pre-primary, Primary, and Post-primary) Act, 2008, and the KCCA Act, 2010, the respondent has general oversight authority over education as a public service and is tasked with promoting government interests. On the claim of irrationality, counsel contended that the decision to halt the redevelopment was not irrational, as the applicant suggested, given that there was no evidence of interference with the school management.

### *Analysis*

# *Illegality*

The task of the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of instrument conferring the duty or power upon the decision-maker. The courts when exercising this power of construction are enforcing the rule of law, by requiring administrative bodies to act within the 'four corners' of the powers and duties. The courts are also acting as guardians of Parliament's will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament's enactments. Illegality as ground of Judicial review ensures that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. See *Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374*

The applicant contends that the respondent acted illegally by trying to cancel the applicant's freehold title and stop the redevelopment of Bat Valley Primary School without the legal right to do so. Only the High Court or the Commissioner for Land Registration can cancel a title. The Respondent's attempts to take away the Applicant's property rights exceed what they are allowed to do under the Kampala Capital City Act.

The respondent has taken over the property registered in the names of the applicant on authority of the resolution of Council and also purportedly cancelling the land title. The actions of the respondent purport to be in exercise of the powers conferred under the Kampala Capital City Act. The power to cancel a land title is vested in the High Court under the Registration of Titles Act or in the Commissioner Land Registration under the Land Act. The decision that purports to cause a cancellation would be illegal and contrary to the empowering legislation which vests the Council with such powers for the governance and management of the city.

The respondent is at liberty to cause the cancellation of titles in at the appropriate offices rather than making baseless resolutions which point to

committing illegality. The respondent can only exercise the powers for the public benefit within the limits set by the law.

The respondent's defence of enforcing a decision of Auditor General is not a ticket to do what is illegal in the eyes of the law. When Parliament was faced with the similar situation on 16th December 2008, the Speaker of Parliament noted;

*"THE SPEAKER: Hon. Members, let us do our part. Certainly, this is a matter that is going to court. We are not going to give ownership of land to one side. Let us end the debate, give our judgment and leave the parties to find a solution. We cannot give ownership of land to anybody when there is a District Land Board……We cannot as Parliament give ownership of land."*

Parliament in its wisdom declined to give the land to any of the parties and advised them to find solutions elsewhere rather than at Parliament. In the similar vein the Council of KCCA ought to have stopped at advising and recommending that the responding parties seek appropriate remedies from court or from the Commissioner Land Registration. The respondent should have taken appropriate steps to cause the cancellation of title through known means or legal processes upon proper evidence being tendered in court.

It was illegal for the Council to *"adopt and implement the Auditor General's recommendation that Kampala District Land Board rescinds/cancels the Freehold title, which was illegally and irregularly granted to SSDM in respect of Bat Valley Primary School"*

It is not the duty of the Council to implement and adopt recommendations of other government agencies, they have a duty to make their own decisions guided by principles of fairness, just treatment and upon giving the affected persons an opportunity to be heard.

#### *Irrationality***:**

Irrationality occurs when a decision is so unreasonable that no sensible authority would have made it. The Applicant claims that the Respondent's decision to stop the redevelopment of Bat Valley Primary School was irrational. The redevelopment had already been approved by the School Management Committee and the Central Division Council, and it aimed to improve the school's facilities. Stopping this approved project without a clear and logical reason makes the Respondent's decision unreasonable.

Official decisions may be held unreasonable when they are unduly oppressive because they subject the complainant to an excessive hardship or unnecessarily onerous infringement of his rights or interests. A public body like the respondent may choose to deploy powers it enjoys under a statute in so draconian fashion that the hardship suffered by the affected individuals in a consequence will justify the court in condemning the exercise as irrational and perverse. See *R (on application of Khatun) v Newham LBC [2004] EWCA Civ 55; [2005] QB 37*

The Respondent's oversight authority does not empower it to halt redevelopment of a school whose management committee has already granted permission to proceed. Bat Valley Primary School has a management committee that duly sat and decided to refurbish its dire state which was subject to several public health condemnation notices. There was also no evidence suggesting that the redevelopment would harm public interest, which makes the Respondent's actions even more unjustified.

The impact of the decision of the respondent Council upon the applicant was economically detrimental and could result in further losses should the old building in the dilapidated state collapse. The actions and decision of the respondent's council is an abuse of power, in the sense of excessive use of power due to the nature of the decision, the function of the particular power and nature of the interests and rights affected. Therefore, the Respondent's decision can be seen as irrational.

## *Procedural impropriety:*

Procedural impropriety occurs when fair processes are not followed, harming the affected party. The courts have emphasized that failing to follow proper procedures, like giving the affected party a chance to be heard, is a serious issue. The applicant asserts that the respondent did not give them a fair hearing before making its resolution, violating both the Constitution and principles of natural justice. There is a presumption that procedural fairness is required whenever the exercise of a power adversely affects rights protected under the Constitution or legislation. The duty to afford procedural fairness is not limited to protection of legal rights in the strict sense, it also applies to general interests which affect livelihood and business interests.

Whenever a public function like that of the respondent's counsel is being performed there is an inference, in absence of an express requirement to the contrary, that the function is required to be performed fairly. The respondent did not consult or involve the applicant in discussions about the school's redevelopment or rent collection, clearly breaching the fairness required in these matters.

The Applicant's right to be treated justly and fairly was ignored, making the respondent's decision procedurally improper.

## *What remedies are the parties entitled to?*

In this case, the respondent's resolution dated 18th December 2023, which aimed to cancel the applicant's freehold interest in the property at FRV 1290 Folio 4 Plot 110 William Street, Kampala, and halt the redevelopment of Bat Valley Primary School, was made unlawfully and illegally and the decision was irrational and procedurally improper. The applicant has been the registered proprietor since 2012 and had held the property as a lessee since 1938. The proposed redevelopment plan had already been approved by the School Management Committee and the respondent's Central Division Council.

The respondent's actions were not only procedurally improper but also went beyond its powers under the Kampala Capital City Act, making the decision illegal and irrational. The applicant demonstrated that the respondent failed to respect the applicant's legal rights and did not follow the necessary procedures, which necessitated judicial intervention.

The respondent's resolution dated 18th December 2023 held under Minute KCCA 100/25/23 at the Respondent's Special meeting which purported to adopt and implement a cancellation or rescission of the applicant's estate and interest in the property comprised in FRV 1290 Folio 4 Plot 110 William Street Kampala is ultra vires, irrational and illegal.

The Respondent's resolution dated 18th December 2023 held under Minute KCCA 100/25/23 at the Respondent's Special meeting which purported to halt the redevelopment of Bat Valley Primary School and in general the property comprised in FRV 1290 Folio 4 Plot 110 William Street Kampala is ultra vires, irrational and illegal.

- *1. An order of Certiorari doth issue quashing the Respondent's resolution dated 18th December 2023 held under Minute KCCA 100/25/23 at the Respondent's Special Meeting.* - *2. Kampala Capital City Authority should account and refund all the money collected during this period when they illegally took over management of this property to the applicants.* - *3. The applicant is also awarded costs.*

I so order.

*SSEKAANA MUSA JUDGE 8 th November 2024*