[2024] UGHC 78

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MUBENDE

## CIVIL SUIT NO.29 OF 2019

## UGANDA TEA GROWERS CORPORATION

**PLAINTIFF**

(In Liquidation)

#### **VERSUS**

- $\vdash$ **BUGANDA LAND BOARD** - $\mathcal{L}$ **BOGERE RACHAEL** - $\boldsymbol{\omega}$ ROBINAH SEMITALA

DEFENDANTS

# BEFORE HON JUSTICE MOSES KAZIBWE KAWUMI

#### JUDGMENT

profits and costs. Singo Blocks 134 and 150 Plots 20 and trespassing or illegally occupying the land comprised in LRV 2715 Folio 6 injunction The Plaintiff filed this suit for an order of vacant possession, a Permanent restraining the defendants 39, General damages, Mesne $and/or$ their agents from

### Background.

the Mubende hectares. The land was acquired by way of a five years' lease granted by 2002. The land is herein after referred to as the "suit land." Folio 6 Blocks 134 and 150. Plots 20 and 39 at Mityana measuring 10.89 The Plaintiff was set up by the Uganda Tea Growers Corporation Act (CAP37) and owned various assets including land comprised in LRV 2715 District Land Board on 1^st June 1997 which expired in

(Repeal)Act 11 of 2006. On 28^th July 2016 Mubende District Land Board repealed and On 24^th May replaced with the Uganda Tea Growers Corporation 2006 the Uganda Tea Growers Corporation Act was


of the lease for a full term of 49 years with effect from 1^st June 1997. under Minute Number MDLB4/2015(3)(D)(1)(a) approved an extension

the did In March 2019 suit land contending that they were trespassers on to it. The defendants Liquidator of the Plaintiff issued notices for the defendants to vacate stated reliefs not vacate the land which prompted the Plaintiff to file the suit for a one Mustapher Ntale acting as the Official Receiver/ the

# 1^st defendant's defence and counterclaim.

and only the Official Receiver had the capacity to file the suit the repeal of the Uganda Tea Growers Corporation Act on 8^th June 2006 that the Plaintiff is a non-existent legal entity since it ceased to exist with Plaintiff has no locus standi to institute it. The 1^st defendant contends suit discloses no cause of action, is barred by law and the The 1^st defendant contends in the Written Statement of Defence that the that the

in liquidation and could not conduct any lawful business save for being not have been legally renewed/extended in 2015 since the Plaintiff was It is further contended by the 1^st defendant that the initial lease repealing Act and did not include acquisition of assets for the Plaintiff. wound up. The duties of the Liquidator were specifically outlined in the e could

could not bind the Plaintiff. by the Liquidator appointed in the appointment instrument and thus $1^{\ensuremath{\text{st}}}$ defendant further contends that the lease agreement was not signed Mityana District and her Land Board had the mandate to deal in it. Mubende District Land Board was illegal since the suit land is located in $\pm$ $\overline{\mathsf{S}}$ also contended that the purported extension of the lease by the The

in error on 28^th July 2016, a declaration that the title issued pursuant to District Land Board for a declaration that the purported lease was issued The 1^st defendant filed a Counterclaim against the Plaintiff and Mubende

the impugned lease the suit. Commissioner Land Registration to cancel the Lease title and for costs of agreement is null and void, an order directing the

#### $\mathsf{2}^{\mathsf{nd}}$ and 3^rd defendants

denying any interest in the suit land and sought for costs suit proceeded ex-parte against her. The 3^rd defendant filed a defence The 2^nd defendant did not file a Written Statement of defence and the

### Representation.

defendant while Mr. Kamya appeared for the 3^rd defendant. appeared for the Plaintiff. Mr. Mukwaya Edward appeared for the Ms. Rachael Niringiye of the Uganda Registration Services Bureau $1^st$

$\mathsf{O}^{\mathsf{n}}$ listing the following issues for resolution by the Court:-14^th January 2020 counsel filed a Joint Scheduling Memorandum

- $\mathbf{1}$ Whether the Plaintiff's lease relating to the suit land was created legally - $\mathcal{L}$ Whether the defendants are trespassers on the suit land - $\omega_{\cdot}$ Remedies available to the parties

Vd<br> sole witness. The 3^rd defendant appeared in court and testified. Witness rendering the judgment statements were filed and the witnesses were cross examined on them her sole witness. The $1^{st}$ defendant had Namboze Florence(DW1) as the The Plaintiff produced Mustapher Ntale (PW1) who is the Liquidator as Counsel. Submissions were filed and have been considered $\Xi$

## The burden and standard of proof

particular fact therefore evidence In civil cases the burden of proof lies on that person who would fail if no $at$ all were given on either lies on that person who wishes the side. The burden of proving court to $\omega$


$\omega$

shall lie on any particular person. believe in its existence unless the law provides that the proof of that fact

must required in a criminal case discharge the legal burden is on a balance of probabilities. The evidence The standard carry a reasonable of proof required to degree of probability but not be $met$ by either party seeking so high as to $\overline{S}$

of proof The balance either way, the Plaintiff will have failed to discharge the burden and where the facts must prove the matters beyond a mere conjecture case is left in equilibrium, the court cannot incline or surmise the

Sections 101 and 103 Mukasa. SCCA No. 17 of 2014. Evidence Act (Cap 6), Senkungu & 4 Others V.

Resolution of the $1^st$ issue

Whether created the Plaintiff's lease relating to the suit land **was** legally

extension of the lease from Mubende District Land Board which granted Plaintiff. That the Mityana Land Office advised the Plaintiff to seek request for its extension was made to Mityana Land office It was the evidence of the Liquidator that upon the expiry of the the initial lease by the lease, a

there covenants and conditions whether expressed or implied. automatic renewal for 49 years running from 1st June 1997 provided It was argued for the there was compliance by the lessee of the development covenant and being no existing Plaintiff that the initial lease breaches or non- observance $was$ of any of the subject to

Plaintiff happened before the extension of the lease had been secured. repeal of the Uganda Tea Growers Corporation Act which set up the expiry of the initial five years period, counsel for the Plaintiff argued. The This was the justification for the continued use of the suit land after the

the or suffered under any enactment so repealed affect any right, privilege, previous operation of any enactment so repealed or anything duly done unless the contrary intention appears the repeal does not affect the Counsel for the Plaintiff cited section 13(2) of the Interpretation Act for so repealed obligation or liability acquired, accrued or incurred under any enactment proposition that where any Act repeals any other enactment, then

sections 278 and 279 of the Companies Act. imputing the application of the Voluntary winding up provisions in down the appointment of a Liquidator to dissolve the Corporation but did not lay Repealing Act however cross referenced the Companies Act thereby It was argued that the Repealing Act under section 3(1) provided for the process of how the dissolution was to be conducted. The

Section 278 of the Companies Act provides that the winding up dissolved as required for the beneficial winding up of the company until it is wound up is made and the company ceases to conduct business except deemed to commence on the day the resolution for the company to be $\overline{S}$

within the mandate of the appointed Liquidator. by Mubende District Land Board and the seeking of the extension was the Plaintiff was still legally existing at the time the lease was extended Based on sections 278 and 279 of the Companies Act, it was argued that

$\overline{S}$ Counsel argued further that the Plaintiff had the certificate of title which proof of ownership under section 59 of the Registration of Titles Act.

$\omega$

previous to the registration of the certificate. any informality or irregularity in the Application or in the proceedings The title can only be impeached on proof of fraud but not on account of

The suit land is located existence of the Mityana District Land Board in whose jurisdiction the capacity of the parties that executed the lease specifically in view of the time the extension of the lease was 1^st defendant challenged the legal existence of the Plaintiff at granted and further challenged the the

#### Decision

quite instructive $\triangleright$ perusal of the Uganda Tea Growers Corporation(Repeal)Act,2006 $\overline{S}$

The was stated to be 8^th June 2006. Plaintiff and for related or incidental matters. The commencement date provide for the appointment of a liquidator for purposes of dissolving the Act was enacted to repeal the Law establishing the Plaintiff; to

On duties as the Liquidator were specified as tohandle the assignment was named to be Mr. Bemanya Twebaze whose designated for appointment as the Liquidator. The 15^th June 2006 the Office of the Official Receiver was specific specifically officer to

(a)Receive all the assets of the Corporation

- $\overline{a}$ Corporation Receive and settle any claim relating to any obligation of the - (c) Determine and settle any terminal benefits payable to the former employees of the Corporation - $(d)$ Dispose of the assets of the Corporation - (e)Recover any debts owed to the Corporation - (f) Carry out any other duty which is incidental or related to the - foregoing duties

$\mathop{\sf Act}\nolimits$ contrary to the submissions of Counsel for the Plaintiff. The Repealing I find no cross referencing to the Companies Act in the Repealing Act statutory Corporation. the Liquidator. I thus find no room for the application of the Companies Act was couched in very clear terms defining its purpose and duties of as submitted by Counsel for the Plaintiff since the Plaintiff was $\omega$

$\vec{\tau}$ exist since its mandate was derived from the repealed Law that created and its repeal implied that the Corporation ceased to exist under the The Plaintiff was established by the Uganda Tea Growers Corporation Act Law. The Plaintiff was a statutory Corporation that could not continue to

It's a only function only in accord with the law creating it. of the sovereign, and deriving its powers by grant from that source, can general principle that a corporation, owing its existence to the will

## Railway Carriage and Iron Co. V Riche (1875) LR7 AC at 653. Bonanza Creek Gold Mining Co. V R (1916) 1 AC 566 at 589; Ashbury

that it did not have that mandate on various accounts mandate to have the lease relating to the suit land extended. I do find The resultant consideration is whether the Plaintiff even had the

property and the land automatically reverts back to the lessor expires, the lessee or tenant ceases to have any legal right to The initial lease expired on $1^st$ June 2002. Once a lease for a definite term the

#### No.2029 of 2016. Dr. Adonia 1997;Luduula Fred Kekitiinwa &Others &Others V Reverend Canon Eriya V Edward Wakida. CA $\mathsf{S}$ Luzida. HCCS **No.3** of

Repealing Act to be collected by the Liquidator. It is also trite to state The suit land was therefore not an asset owned by the Plaintiff from the June 2002. It could not be among the assets envisaged by the


case that once a lease expires no extension can be executed as in the instant

dissolve but not to continue running the business of the Corporation lease contrary to the known Law on Leases, the What the Repealing act and the defined duties of the Liquidator which were parties purported to do was an extension of specific purpose of the $\boldsymbol{\omega}$ non -existing to

which I find pertinent to reproduce provides :clause in the initial lease document. Clause Counsel for the Plaintiff heavily submitted on the "automatic renewal" 2 of the lease agreement

'THE LESSEE/S HEREBY COVENANTS with the Lessor as follows namely:

$(d)$ $(\alpha)$ implied by law in this lease or otherwise contained or referred to. To develop the said land to the satisfaction of the lessor. To observe and perform all the conditions and covenants

(c)When the and June covenant herein and if there shall not at the time be any existing granted hereby." implied the said term shall be enlarged to 49 years from the covenants breach or non –observance on the part of the Lessee of any of the construed as if the said term of 49 years had been originally 1997 and automatically and this lease shall henceforth be read Lessee shall have complied with the development conditions in this lease whether expressed $1st$ $\overline{or}$

$\mathsf{A}\mathsf{N}$ satisfied with the developments made on the suit land by the Lessee. development of the land had to be followed with observance covenants appreciation of the and conditions in the above clauses Lease for its extension for the full term is that the Lessor had of all the to .<br>The be

$\infty$ conditional and not implied as submitted for the Plaintiff to be "automatic." The alleged automatic extension was therefore

lease The legally be extended. Lessee however had to apply for any purported before the expiry of the initial term since an expired lease extension of cannot the

$\overline{\exists}$ $an$ original lease expires. It was further observed that renewal on the other of the lease and the lessee exercises the option on or before the day the observed that an option to extend remains effective only during the term previous relationship or contract. hand denotes Olango V Toorom. HCCA No.39 of 2019, Justice Mubiru correctly old<br> contract with a new one as opposed to a mere extension of a recreation of a legal relationship or the replacement of $\omega$

Cn Board, I hold that the purported lease was not legally created. purported account of the repeal of the law creating the extension of an expired lease by Mubende **Plaintiff** District Land and the

of the extension, the suit land was located in the jurisdiction of Mityana controlling authority was Mubende District Land an agreed fact that at the time the initial lease was District Land Board in granting the purported extension of the lease. It is I further find it imperative to explore the mandate of the Mubende District Land Board Board but at the time executed, the

lease The advised Board which subsequently granted the extension. District Land Board. It was further stated that the Land office at Mityana Plaintiff's witness stated that an application for extension of the was made to Mityana Land Office which is different from the the Liquidator to seek for the extension from Mubende Land

to the advice to seek the extension from Mubende District Land Board. The witness did not avail court with any official communication relating

The 241(1) which lays out the functions of the Land Boards. 240(1) of the Constitution which sets up District Land Boards and Article mandate of the two Land Boards is however derived from Article

the registration and transfer of interests in land (c) to deal with all other district which is not owned by any person or authority (b) to facilitate made by Parliament. matters connected with the land in the district in accordance with laws The functions of the District Land Boards are (a) to allocate land in the

Land Act with its amendments and the Land Regulations 2014 The constitutional provisions are operationalized by Section 59(1) of the

It is specifically provided in Regulation 23(1) (a) that:-

which is not owned by anyone." a person may apply to the Board to be allocated land in the district

Section 4 of the Land Amendment Act 1 of 2010 further provides that:-

above sections, the transaction shall be void." "when a land Board concludes any transaction in contravention of

**jurisdiction** and that was Mubende but not Mityana District issued the initial lease, it ceased to have jurisdiction over It follows from the above that much as the Mubende District Land Board in 2015. A Land extension/renewal from the creation of the Mityana District Land Board Board can only deal in land within its geographical **Its**

Land absence of any documents where the Mityana Land Office advised the not Singo contrary to the description in the initial lease documents extended lease was indicated to be located on a Liqudator to seek for the extension of the lease from Mubende District This was not an innocent act by the executing parties as derived from the Board. I further find it strange that the land described Block in Buwekula $\overline{\mathbf{D}}$ and the

I thus hold that the purported extension of the lease by the Mubend Law no action premised on an illegality can be left to stand in the eyes of the District Land Board was illegal since it lacked the jurisdiction to do so and

## V Cardinal Emmanuel Nsubuga (1982)HCB 11. Luduula Fred&Others V Rev Eriya Luzinda(supra). Makula International

Resolution of the 2^nd issue

## Whether the defendants are trespassers on the suit land

that the 2^nd and 3^rd defendant claimed to have purchased the suit land trespass in respect of the 2^nd and 3^rd defendants. It was further alleged in court from the 1^st defendant but this was not backed by any credible evidence The Plaintiff's witness did not adduce evidence about the alleged acts of

only stated that those who paid claimed to have been officials of the 1^st Office of the Liquidator as shown in a copy of a receipt issued on $4^th$ suit land as evidenced by the intention to purchase the same from the Regarding the 1^st defendant, it was contended that she did not own the defendant. August 2017. The witness did not know who paid the bidding fees and

issuance of the receipt attributed to a payment allegedly made by the 1^st In the absence of evidence of the bidding documents preceding the the land by the $1^{st}$ defendant, defendant, I find no basis to find that there was an attempt to purchase

the suit land section 2(4) thereof which listed the returned assets and did not include Rulers (Restitution of Assets and Properties Act. (cap.247) relying returned to the traditional ruler of Buganda by virtue of the Traditional Counsel for the Plaintiff further argued that the suit land was not $\overline{O}$

the effective dates for the return of such a property to the traditional of the Act would be a subject of an agreement which would determine return of any estate not included in the schedule created by section $2(4)$ It was ruler argued that under Sections 2(5),(6) and (7) of the same Act the

thus not a trespasser as alleged by the Plaintiff. Namboze Florence court the history of the ownership of the suit land. (DW1) a registered surveyor employed by the $1^{\rm st}$ defendant narrated to The $1^{\text{st}}$ defendant on the other hand claims to own the suit land and $\overline{S}$ .

$was$ official mailo estate currently comprised in Singo Blocks 134 and 150 square miles. The land was then registered as MRV 241 Folio 24 as the Owesaza of Singo(County Chief)by virtue of the 1900 Agreement and It was her evidence that the suit land was part of what was allotted to originally comprised in Final Certificate No.17648 measuring an $\overline{4}$

introduced evidence of the allotment sheet indicating the suit land as the Plaintiff's lease lies within the estate of Owesaza Singo. DW1 further falls within the official estate. court the consistency in all the documents which reflect that the suit land part of the official estate of the Owesaza Singo. DW1 demonstrated to DW1 presented evidence of the historical map of the land showing that

office under the 1900 agreement." Section 3 of the same Act conferred $\overline{+}$ official estate was held by virtue of one's chieftainship. the office of which he was the holder and Section 5 provided that any the holder of an official estate into a Corporation Sole by the name of Estates Act defines an official estate as "any estate held by virtue of any Was submitted for the $1^{\mbox{\scriptsize st}}$ defendant that Section 2 of the Official

Official estate of the Owesaza of Singo were vested in the The Kingdoms were abolished in 1966 and their properties including the Uganda Land

effect was executed on 1^st August 2013. Constitution were vested in the Kabaka of Buganda. An agreement to the the properties vested in the Uganda Land Commission by the Traditional Rulers (Restitution of Assets and Properties) Act. (CAP.247), restoration of the Kingdoms in 1993 Commission under Article 108 of the 1967 $\quad\text{and}\quad$ the enactment of Constitution. Upon 1967 the the

## Decision.

ie Gombolola and Masaza were situated." for the return of 'land where the former administration headquarters (Restitution of Assets and Properties) Act. Clause 1(b) thereof provides stated in the recitals that it was made pursuant to the Traditional Rulers Uganda and the Kabaka of Buganda executed on 1st August 2013. It is I had occasion to peruse the Agreement between the President $of$

2013 incorporated into the returned assets by clause 1(b) of the $1^{st}$ August were executed by the President of Uganda and the Kabaka of Buganda The suit land is included in the estate where the Singo Saza headquarters Agreement which came into effect immediately on the day it was located prior to 1966 and are now still located. It was thus

suit. stated in the resolution of the $1^{st}$ issue agreed on by the parties to this the Kabaka of Buganda, the Plaintiff had no running lease for the reasons defendant to the effect that by the time the suit land was returned subsequent agreement. I am also land returned to the Kabaka of Buganda by virtue of the Act and the The Plaintiff was thus not an affected party in respect of the suit in agreement with the submission of Counsel for the to $1^st$

the 1^st of the expired lease under the Land Regulations, the affected parties like If the Plaintiff had followed the proper procedures of acquiring a defendant would have had a forum to voice their concerns. This renewal

Was mandate to do what it purported to do. avoided by engaging Mubende District Land Board which had no

possession who can institute a trespass claim. unauthorized entry on one's land and it is committed not against the land 급 but the is also person who is in actual possession. It is only imperative to note that trespass $\overline{S}$ constituted $\boldsymbol{\omega}$ party with yd<br> an

claim possession based lease document/title and cannot in the view of this court claim to have the evidence of the Liquidator. The Plaintiff holds an illegally acquired The Plaintiff is not in actual possession of the land cannot be sustained on such a title. On that ground per se, as demonstrated the trespass Vq.

Sheikh Muhamad Lubowa V Kitara 126;Lutaya V Stirling Civil Engineering Company Ltd. SCCA No.11/2002. Enterprises Limited(1992)V KALR

trespassers on the suit land. hold that the Plaintiff failed to prove that the defendants are

Resolution of the 3^rd issue

## Remedies available to the parties

defendant succeeds. I make the following declarations and orders :filed by the Plaintiff Based on the findings and holding of the court on the two issues, the suit is dismissed and the counterclaim by the $\cdot 1^{\text{st}}$

- 1) It is hereby declared that the lease agreement executed on $28^{th}$ July 2016 between the Plaintiff/Counter defendant and Mubende District Land Board/2^nd Counter defendant is null and void. - 2) It is hereby declared that leasehold title held by the Plaintiff in and 28^th July 2016 is null and void. respect to land comprised in LRV 2715 Folio 6 Buwekula Blocks 134 150 Plots 20 and 39 arising from the lease agreement dated

- 3) The Commissioner Land Registration is hereby directed to cancel Buwekula Blocks 134 and 150, Plots 20 and 39. Corporation in respect of land comprised in LRV 2715 Folio 6 the Lease hold certificate of title held by the Uganda Tea Growers - 4) Costs of the suit and the counterclaim are granted to the defendant. $1^st$ - 5) The $3^rd$ defendant is awarded costs of the suit

$\vec{X}$

Moses Kazibwe Kawumi Judge

13^th February 2024

$\mathcal{L}_{\mathcal{L}}$

$\frac{1}{\sqrt{2}}\,$

15