Wakilii

Kisugu Quarries Limited v Administrator General (Civil Appeal 10 of 98)

Supreme Court · [1999] UGSC 28 · 1999 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal, which had upheld the High Court's dismissal of a first-instance civil suit
Decision
Appeal dismissed; the decisions of the Court of Appeal and High Court holding the lease null and void were upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court dismissed the appeal. A lease granted in 1970 to a non-African company without the ministerial consent mandatorily required by section 2 of the Land Transfer Act was illegal and null and void ab initio. A later repossession certificate under the Expropriated Properties Act could neither create nor revive rights in a lease that never existed in law, and the courts were entitled, indeed obliged, to take the illegality point raised in defence. The appellant's own evidence failed to establish that consent had ever been obtained; the matter was not one of an excessive standard of proof but of an absence of proof. The repossession certificate was rightly disregarded and costs were awarded against the appellant.

Outcome

Appeal dismissed; the decisions of the Court of Appeal and High Court holding the lease null and void were upheld

Facts

The appellant, a non-African company wholly owned by Asians, was granted a lease over mailo land comprising a stone quarry at Kisugu by Paulo Kiddu Musisi, executed on 25 June 1970. The appellant claimed ministerial consent under the Land Transfer Act had been obtained in 1969 but held no copy. In 1972 its shareholders fled following Idi Amin's expulsion of Asians; the property was taken over by government, managed by the Departed Asian Property Custodian Board, and leased to Stone Sales (U) Ltd. After the Expropriated Properties Act 1982, the appellant obtained a repossession certificate, evicted Stone Sales and took possession. The Administrator General, having obtained letters of administration to the deceased lessor's estate, exercised the lessor's power of re-entry for default on a 15-year rent-review clause and threatened eviction. The appellant sued to resist eviction. In defence the respondent pleaded that the 1970 lease was illegal and void for want of the ministerial consent required of non-Africans under section 2 of the Land Transfer Act.

Issues

  1. Whether the Court of Appeal erred in deciding the case by going behind an unchallenged repossession certificate issued under the Expropriated Properties Act 1982.
  2. Whether the appellant's 1970 lease was invalid for want of the ministerial consent required of a non-African under section 2 of the Land Transfer Act.
  3. Whether the courts below set the standard of proof too high in requiring the appellant to prove that ministerial consent had been obtained.

Orders

  • Appeal dismissed.
  • Costs of the appeal to the respondent in the Supreme Court, the Court of Appeal and the High Court.

Rules and key headnotes

Land & Property — Acquisition by non-Africans — Mandatory ministerial consent under Land Transfer Act s.2
A lease of mailo land granted to a non-African without the ministerial consent mandatorily required by section 2 of the Land Transfer Act is illegal and null and void ab initio, and no subsequent act can convert it into an enforceable interest.
Contract Law — Illegality — Court's duty to refuse enforcement of an illegal contract
A court will not enforce an illegal contract, and it is the duty of the court to take the point of illegality even where the litigants do not; the maxim ex turpi causa non oritur actio applies to civil as well as criminal matters.
Land & Property — Expropriated Properties Act 1982 — Effect of repossession certificate on a void lease
A repossession certificate issued under the Expropriated Properties Act 1982 cannot create, revive or validate property rights where the underlying lease was null and void ab initio; where there was no valid interest vested in the Government there is nothing to repossess.
Evidence — Proof of ministerial consent — Conduct of parties and presumptions
The conduct of the parties, such as re-entry and receipt of rent, cannot create or support a right that did not exist; a party asserting that ministerial consent was given must adduce satisfactory evidence of it, and the court cannot presume the consent was given in the absence of such evidence.

Legislation cited (8)

Cases cited (9)

  • Noordin Charama Walji v Drake Ssemakula (Civil Appeal No. 40 of 1995)
  • Chris Akena Onapa v Mohammed Hussein Rashid Punjani (Civil Appeal No. 5 of 1995)
  • Slaughter and May Vs. Brown Doering MC NAB and Company (1982) 2 QB 728
  • Phillips v Copping [1935] 1 KB 15
  • Motibhai Manji v Khursid Begum [1957] EA 101
  • Mistry Amar Singh v Kulubya [1963] 3 All ER 499
  • R v Mitha [1961] EA 568
  • Miller v Minister of Pensions [1942] All ER 372
  • Broadways Construction Co v Musa Kasule & 2 Others (Civil Appeal No. 39 of 1971)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kisugu Quarries Limited v Administrator General (Civil Appeal 10 of 98) [1999] UGSC 28 (5 October 1999)
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.