Wakilii

Nakanwagi v Stirling Engineering (U) Limited & Another (Civil Suit 690 of 1993)

High Court · [1995] UGHC 36 · 1995 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of land
Decision
Plaintiff declared rightful leaseholder; Defendant No.1's lease cancelled and eviction ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that where the Uganda Land Commission grants a lease to a party after a prior applicant's lease has already commenced following survey approval and payment of all required fees, the subsequent grant is null and void ab initio. The Commission cannot allocate land to which it has no proprietary interest. A Certificate of Title issued on the basis of a void grant confers no protection under the Registration of Titles Act. The Plaintiff's lease commenced on or about 8 March 1989, one month after survey approval, and the Commission had no land available to grant to the first Defendant thereafter. The first Defendant's lease and Certificate of Title were cancelled and the Plaintiff declared the rightful leaseholder.

Outcome

Plaintiff declared rightful leaseholder; Defendant No.1's lease cancelled and eviction ordered

Facts

The Plaintiff was issued a lease offer on 14 May 1988 for approximately 4.8 hectares of land at Kasenge, Mukono, originally occupied by her father under customary tenure. She paid all required fees on 13 May 1988. Survey instructions were issued on 15 May 1988 and the survey was approved on 8 February 1989, designating the land as Plot 23 measuring 3.068 hectares. The Plaintiff's lease was to commence one month after survey. On 20 March 1990, the Department of Lands instructed survey of 8 acres at Mbalala, Mukono for the first Defendant. Plot 27 (2.43 hectares) was surveyed off Plot 23 on 29 March 1990 without instructions to sub-divide. The first Defendant was issued a 5-year lease from 1 April 1990 and a Certificate of Title. The Uganda Land Commission granted the land to the first Defendant based on alleged government policy under Circular No.1 of 1969 and pressure from the Ministry of Works, despite the Plaintiff's prior lease having already commenced. No formal lease documents or Certificate of Title were ever issued to the Plaintiff.

Issues

  1. Whether the suit land belongs to the Plaintiff or Defendant No.1?

Orders

  • The suit property known as Plot 27, Comprised in Leasehold Register 1841 Folio 11, belongs to the Plaintiff.
  • Defendant No.1's lease and Certificate of Title to Plot 27 is null and void and must be cancelled from the Register.
  • A permanent injunction is issued against Defendant No.1 restraining it, its agents, servants and/or workmen from entering, remaining or interfering or otherwise dealing with Plot 27.
  • An order for eviction of Defendant No.1 forthwith is granted.

Rules and key headnotes

Land & Property — Leasehold — Commencement of Lease — Effect of Survey Approval
A lease granted by the Uganda Land Commission commences one month after survey approval when the lease offer states that the lease is for an initial period from the first of the month after survey, even if formal lease documents and a Certificate of Title have not yet been issued.
Land & Property — Leasehold — Void Grant — Subsequent Allocation of Already Leased Land
Where a lessee's lease has already commenced following survey approval and payment of all required fees, the Uganda Land Commission has no proprietary interest remaining in that land and any purported grant of the same land or part thereof to another person is null and void ab initio.
Administrative Law — Ultra Vires — Uganda Land Commission — Requirement to Act Within Constitution and Statute
The Uganda Land Commission is a constitutional body which is enjoined to act in accordance with the Constitution, the Public Lands Act, and any law. It cannot act outside the letter and spirit of the law, not even when it cites government policy. Government policy must be taken to be consistent with the law of the land and courts cannot give effect to what is contrary to the law under the guise of government policy.
Land & Property — Certificate of Title — Indefeasibility — Exception for Void Root of Title
A Certificate of Title issued on the basis of a void grant confers no protection under sections 56 and 184 of the Registration of Titles Act where the proceedings previous to registration were totally null and void, not merely irregular or informal. A void grant cannot be converted into an enforceable right by subsequent registration.
Administrative Law — Government Policy — Inapplicability of Circular to Private Companies
Circular Standing Instruction No.1 of 1969, which sets out the procedure for allocation of land to Government Ministries and Departments, does not apply to limited companies, even if they are alleged to have some government interest. The Circular expressly excludes parastatals and district administrations from its scope and requires them to carry out their own negotiations.
Land & Property — Public Lands Rules — Rule 8 — Failure to Proceed with Lease
Rule 8 of the Public Lands Rules (S.I. 201-1) permits the controlling authority to offer land to another applicant only where the original applicant fails to proceed with signing and registration of the grant or lease after accepting an offer and paying all required fees. This rule does not apply where the applicant has done all required and the controlling authority refuses to prepare formal lease papers without any default on the part of the applicant.

Legislation cited (11)

Cases cited (4)

  • Sewanyana v Aleker (Civil Appeal No. 4 of 1990)
  • Zimbe v Kamanza (1952-56) 7 U.L.R. 68
  • Katarikawe v Katwiremu [1977] HCB 187
  • Manji v Begum (1957) E.A. 101

Full judgment

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

Nakanwagi v Stirling Engineering (U) Limited & Another (Civil Suit 690 of 1993) [1995] UGHC 36 (14 March 1995)
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.