Attorney General vs Osotraco Ltd (Civil Appeal No 32 0f 2002)

Court of Appeal · [2005] UGCA 1 · 2005 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from High Court judgment construing section 15(1)(b) of the Government Proceedings Act as inconsistent with the Constitution and granting an eviction order against the Government

Decision

Appeal dismissed; High Court orders of eviction and costs against the Government confirmed

The full judgment

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Holding

The Court of Appeal dismissed the Attorney General's appeal, holding that the trial Judge acted properly under article 273 of the Constitution, which empowers all courts to construe and modify existing unjust laws to bring them into conformity with the Constitution, without referring the matter to the Constitutional Court under article 137. The Judge had not interpreted the Constitution or reviewed legislation, but merely qualified the archaic proviso to section 15(1)(b) of the Government Proceedings Act so as to protect the respondent's constitutional right to own property under article 26. Accordingly, the eviction order and costs against the Government were confirmed.

Facts

Osotraco Ltd was the registered proprietor of Plot No. 69 Mbuya Hill, Kampala, having purchased it from Uganda Times Newspapers Limited in June 1985 and obtained registration. The property was occupied by employees of the Ministry of Information who refused to vacate, the Ministry claiming the property as its own. Osotraco filed HCCS No. 1380 of 1986 seeking an eviction order, a permanent injunction, special and general damages, mesne profits, interest and costs. The High Court (Egonda-Ntende J) found that section 15(1)(b) of the Government Proceedings Act, which prevented courts from ordering recovery of land against the Government, was not in conformity with the 1995 Constitution. The Judge construed and qualified the proviso under article 273 so that it did not apply, and ordered the Government and its servants to give vacant possession within thirty days, failing which eviction would issue, with costs. The Attorney General appealed.

Issues

Whether the trial Judge erred in construing section 15(1)(b) of the Government Proceedings Act as not in conformity with the Constitution, thereby usurping the jurisdiction of the Constitutional Court under article 137.
Whether the trial Judge erred in granting the respondent an order of vacant possession and/or eviction against the Government.

Orders

Appeal dismissed with costs.
The trial Judge's orders of eviction and costs against the appellant confirmed.
Costs awarded here and below.

Key headnotes

Constitutional Law — Article 273 — Power of all courts to modify existing law to conform with the Constitution

Article 273 of the Constitution empowers all courts, not only the Constitutional Court, to construe and modify existing unjust or archaic laws with such modifications, adaptations, qualifications and exceptions as are necessary to bring them into conformity with the Constitution, without referring the matter to the Constitutional Court.

Constitutional Law — Distinction between article 273 modification and article 137 interpretation

The mandate to interpret the Constitution and review legislation for inconsistency under article 137(3) is distinct from the power under article 273 to construe and modify existing law; modifying existing law to bring it into conformity with the Constitution does not amount to usurping the Constitutional Court's jurisdiction.

Administrative Law — State immunity — Liability of Government to land recovery orders

Since the 1995 Constitution the rights, powers and immunities of the State are not immutable; historic common law doctrines restricting the liability of the State cannot stand in the way of constitutional protection of fundamental rights, so a court may order the Government to give vacant possession of land notwithstanding the former statutory bar.

Land & Property — Right to own property — Recovery of land from Government

A registered proprietor whose property is occupied by the Government otherwise than by compulsory acquisition in the public interest is entitled, under article 26 and the right to meaningful redress under article 50, to recover possession of the property.

Legislation cited (10)

Government Proceedings Act s.15(1)(b)
Government Proceedings Act (Cap 77) s.14(1)(b)
Constitution of Uganda 1995 article 273
Constitution of Uganda 1995 article 137
Constitution of Uganda 1995 article 2
Constitution of Uganda 1995 article 20(2)
Constitution of Uganda 1995 article 26
Constitution of Uganda 1995 article 50
Constitution of Uganda 1995 article 126(1)
Expropriated Properties Act No. 9 of 1982 s.11(4)(b)

Cases cited (7)

Pyarali Abdu Ismail v Adrian Sibo (Constitutional Petition No. 9 of 1997)
Ephrahim v Pastory and Another (1970) LRC (Const.) 757
Bull v Minister of Home Affairs (1987) LRC (Const.) 547
Attorney General v Tinyefunza (Constitutional Appeal No. 1 of 1987)
Attorney General v Silver Spring Hotel Ltd (Civil Appeal No. 1 of 1989)
N. Nagendra Rao and Co. v State of A.P. AIR (1994) S.C. 2663
Byne v Ireland and the Attorney General (1972) 1R 241 at 282

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.