THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL COURT DIVISION)

MISC. APPLICATION NO. 758 OF 2012

ARISING FROM MISC. APPLICATION NO. 468 OF 2012

(All Arising from Arbitration Cause No. 9 of 2011)

1. ATTORNEY GENERAL
2. UGANDA LAND COMMISSION…...................................APPLICANTS
VERSUS
NAMAIBA TEA ESTATES LTD……………………………….RESPONDENT

BEFORE: HON. LADY JUSTICE HELLEN OBURA

RULING

This is an application brought under section 98 of the Civil Procedure Act (CPA)
and Order 52 rules 1 and 2 of the Civil Procedure Rules (CPR) seeking for Orders
that Miscellaneous Cause No. 486 of 2012 and the Orders made therein be set
aside the subject matter being property of the Government of the Republic of
Uganda registered and held in trust by Uganda Land Commission, registered as
user and restricted to the Ministry of Public Service, National Records and
Archives Centre and barred in law. The applicants also sought for an order that the
costs of this application be provided for.

The grounds in support of this application are set out in the Notice of Motion as
follows:-

1. Miscellaneous Cause No. 486 of 2012 is barred in law.

2. That orders made therein are void and unconstitutional.

 3. That it is in the interest of justice that the Orders in Miscellaneous Cause
No. 486 of 2012 be revised and the orders therein set aside.

In support of the application is an affidavit deposed by H.I Kaweesa, the Secretary

of the 2nd applicant. In answer to the application the respondent filed an affidavit in
reply deposed by Alziik Namutebi, an advocate of the Courts of Judicature
employed by the firm of advocates representing the respondent.

The gist of her reply is firstly, that Uganda Land Commission is the registered
proprietor and owner with full legal capacity to deal with the property registered in
its name as mandated by the Constitution and the relevant laws. Secondly, that the
present execution is against the 2nd respondent and not the Government. Third and
lastly, that there is no law barring a decree holder from attaching and selling
government property in execution and if there was any such law, it would be
inconsistent with Articles 8A, 21, 28 and 126 of the Constitution.

The background of this application as gathered from both parties is that the 2 nd
applicant on the instructions from Uganda Prisons Services entered into a contract
with the respondent to lease Plot 33 Nakivubo road to them in exchange for
construction of a new prison at Nakasongola. The Chief Government Valuer
valued the land at one billion shillings which was to be the value of the
construction works to be done at Nakasongola. The construction work later
exceeded one billion shillings. The respondent then commenced arbitration
proceedings against the applicants for the excess sum and a final award was
delivered on 21/6/2011. The award was registered in this court and a Certificate of
Order against the Attorney General was extracted and served on the 1 st applicant.
No payment was made by the 1st applicant and the respondent sought for execution
against the 2nd applicant as the 2nd judgment debtor. Execution proceedings was
instituted vide Misc. Application No. 486 of 2012 by way of attachment and sale
of property comprised in FRV 1154 Folio 13 at Plot 8 Lourdel Road Nakasero
registered in the name of the 2nd applicant.

When this application came up for hearing on the 17 th of February 2012 Mr.
Mohammed Mbabazi appeared for the respondent but the applicants were not
represented. Counsel for the respondent sought permission to file written
submissions which both parties did hence this ruling.
Counsel for the applicants submitted that the attachment and sale of Plot 8 Lourdel
Road Nakasero is barred by law and public policy considerations arguing that it is
government property held in trust by the 2nd applicant. In addition, it was
contended that the property’s use is restricted to Ministry of Public Service
National Record and Archives Centre.

The applicants’ counsel submitted that the law expressly bars any execution and
attachment of Government property. For that position reference was made to
section 19 of the Government Proceedings Act Cap. 77 which bars execution or
attachment against government. Rule 15(a) of the Government Proceedings (Civil
Procedure) Rules S.I 77-1 was also cited to support the argument that Order 22 of
the CPR which relates to execution of decrees and Orders does not apply to
Government.

In addition the applicants’ counsel cited Article 238 of the Constitution as the one
that established the second applicant whose function according to Article 239 of
the Constitution and section 49 of the Land Act is to hold and manage any land in
Uganda vested in or acquired by the Government of Uganda in accordance with the
provisions of the Constitution.

The applicants’ counsel also cited the case of Commissioner of Public Highways v
San Diego (31 SCRA 617) where the Philippine Supreme Court held:

“The universal rule that where the state gives its consent to be sued
by private parties either by general or special law it may limit
claimant’s actions only up to the completion of proceedings anterior
to the stage of execution and that the power of court ends when the
judgment is rendered, since government funds and properties may not
be seized under writs of execution or garnishment to satisfy such
judgments is based on obvious considerations of public policy.”

It was argued for the applicants that disbursement of public funds must be covered
by the corresponding appropriation as required by law. The other argument for the
applicants was that the functions and services rendered by the State cannot be
allowed to be paralyzed or disrupted by the diversion of public funds from their
legitimate and specific objects as required by law.
On the other hand, counsel for the respondent submitted firstly, that the applicants
in this case are the Attorney General and the Uganda Land Commission however
the execution by way of attachment and sale is against the Uganda Land
Commission, the 2nd applicant as the registered proprietor and owner of Plot 8
Lourdel Road. Secondly, that the execution process against the Attorney General/
1st judgment debtor failed to realize the decretal sum, and satisfy the judgment
debt. It was argued that the respondent applied for and obtained a Certificate of
Order against the Government which was duly served on the relevant officials but
to date remains unpaid.

According to the respondent, the execution is not against Government but rather
against the 2nd applicant as a legal entity established by the Constitution and the
Land Act which by virtue of annexture A to the affidavit in reply is the registered
proprietor and owner of the attached property. It is the respondent’s case that the
property belonging to the 2nd applicant can be attached without any bar from the
Government Proceedings Act.

It was further submitted for the respondent that for government to invoke
immunity or exemption from attachment it would be by way of objector
proceedings. In relation to that it was argued that the present application is
incompetent and not maintainable because it is not by way of objector proceedings
as the 1st applicant claims that Plot 8 Lourdel road is its property.

With respect to the law cited, it was submitted by counsel for the respondent that
section 19 of the Government Proceedings Act and Rule 15(a) of the Government
Proceedings (Civil Procedure) Rules do not in any way protect the 2 nd applicant
from execution. It was argued that the execution under challenge is against the 2 nd
applicant which is like any statutory corporation that owns properties belonging to
government but are not immune from execution.

Furthermore, the respondent argued that the exemption from attachment or

immunity under section 19 is in respect of enforcement against Government but
not attachment of Government property. In line with that the respondent’s counsel
submitted that the only property immune from execution is provided for under
section 44 of the Civil Procedure Act. It was counsel’s opinion that property
belonging to Government is immune only if you want to enforce against
Government. Finally, that property belonging to Government but registered in the
name of a Government body is not immune from execution.

The respondent’s counsel also submitted that the law granting immunity to
Government property against execution is presently outdated and obsolete. For that
position reference was made to the case of Attorney General v. Osotraco Ltd
CACA NO. 32 of 2002 where provisions granting immunity to government against
court process were held as discriminatory. Also the case of Kenya Bus Service Ltd
& Another v. Minister for Transport & 2 others [2012] KLR was cited to the
effect that such provisions have been held to be discriminatory and
unconstitutional.

I have given due consideration to the affidavits by both parties, the documents
attached and the submissions of both counsel. Whereas the applicants’ case is that
Plot 8 Lourdel Road Nakasero is property that the 2nd applicant holds in trust for
the Government and therefore not liable to attachment, the respondent contends
that indeed the 2nd applicant which is like any statutory corporation owns that
property and is liable for attachment.

I will first deal with the competence of this application in as far as the 1 st applicant
is concerned as challenged by the respondent. The argument of the respondent’s
counsel that Objector Proceedings would have been appropriate to seek court’s
intervention in releasing the property from attachment, in my view, would be valid
if the 1st applicant was merely objecting to the attachment on the ground that it has
interest in it that merit protection by court. However, this application has a wider
scope than that as it raises a question of illegality of the Order given by court in
respect of the property being the subject of that Order and seeks to set it aside. The
1st applicant is not per se seeking for an order to release the property from
attachment which would require bringing an objector proceeding.

In any event, it has been held that that no action may be defeated by use of wrong
procedural mode. See Kinyanjui & Another vs Thande & Another [1995 – 98]
EA 159 and Francis Wazarwahi Bwengye v Haki .W. Bonera Civil Appeal No.33
of 2009. Similarly, in Tarlol Singh Saggu v Roadmaster Cycles (U) Ltd CACA
No. 46 of 2000 the Court of Appeal citing with approval the decision of Sir
Charles Newbold P in Nanjibhai Prabhudas & Co. Ltd v Standard Bank Ltd
[1968] 1 EA 670 held:
  “The court should not treat any incorrect act as a nullity with
the consequence that everything founded thereon is itself a
nullity unless the incorrect act is of a most fundamental nature. 
Matters of procedure are not normally of a fundamental nature.”

The Supreme Court of Uganda emphasized in the case of Re Christine Namatovu

Tebajjukira [1992 – 93] HCB 85 that:

“The administration of justice should normally require that the

substance of disputes should be investigated and decided on
their merits and that errors and lapses should not necessarily
debar a litigant from the pursuit of his rights.”

For the above reasons, I do not find any fault with the procedure adopted by the 1 st
applicant in bringing this application so the argument of counsel for the respondent
is accordingly rejected. It is instead my finding that this application is competent
and maintainable at law.

I now turn to consider the merit of this application. Counsel for the applicants
based his argument that the Order sought to be set aside is barred by law on section
19 (4) of the Government Proceedings Act Cap. 77 and rule 15(a) of the
Government Proceedings (Civil Procedure) Rules as well as Articles 238 (1) and
239 of the Constitution.

Section 19 (4) of the Government Proceedings Act provides;

“Except as is provided in this section, no execution or attachment or

process in the nature of an execution or attachment shall be issued
out of any court for enforcing payment by the Government of any
such money or costs as are referred to in this section, and no person
shall be individually liable under any order for payment by the
Government, or any Government department or any officer of the
Government as such, of any such money or costs.”

Rule 15(a) of the Government Proceedings (Civil Procedure) Rules provides;

“Where an order of the kind mentioned in section 19 of the Government

Proceedings Act has been made, the following provisions of the principal
 Rules shall not apply—(a) Order XXII (Execution of decrees and
orders)”;

Meanwhile Article 238 (1) of the Constitution creates the 2nd Applicant. Article
239 that provides for its core function state as follows:

“The Uganda Land Commission shall hold and manage any land in
Uganda vested in or acquired by the Government of Uganda in
accordance with the provisions of this Constitution and shall have
such other functions as may be prescribed by Parliament.” [Emphasis
added].

From the submissions of both counsel and the laws relied upon as quoted above, I
find two important issues for determination by this court. The first one is whether
an order of attachment can be issued for enforcing payment against Government
and if so, the second issue would be whether land registered in the name of the
Uganda Land Commission is Government land which is immune to attachment.

As regards the first issue, section 19 (4) of the Government Proceedings Act is
explicit on the matter and I would agree with the submissions of counsel for the
applicants. I have also noted the submission of counsel for the respondent based on
the authority of Attorney General v. Osotraco Ltd (supra). With due respect to
counsel for the respondent, the facts of that case are distinguishable from the
instant one in the following aspects. First of all the respondent in that case was the
registered proprietor of the land in dispute. Secondly, it was section 15 (1) (b) of
the Government Proceedings Act under consideration and not section 19 (4) which
is in issue in this case. Thirdly, the issue was eviction of Government from the
property of another person and not attachment of Government property as it is in
this case.

Although some general principles were stated in Attorney General v. Osotraco

Ltd(supra). I am of the considered view that each case should be decided on its
distinct facts and circumstances which calls for a lot of caution in applying the
principles so as to avoid overstretching them beyond what the court intended based
on the facts and circumstances of that case.

In my considered view, the effect of section 15 (1) (b) that was considered in the
Attorney General v Osotraco Ltd (supra) is not comparable to the effect of section
19 (4) of the Government Proceedings Act under consideration in this case. This is
because unlike in that case where the aggrieved party had no other option for
effective redress, in the instant case there are options for the respondent to enforce
the Certificate of Order extracted under section 19 (c) of the Government
Proceedings Act. For instance, the respondent can apply for a writ of mandamus
against the Secretary to the Treasury to compel him to perform his statutory duty
and pay the sum stated in the Certificate of Order as was observed by Madrama, J
in Goodman Agencies Ltd & 3 others v Attorney General & another
Miscellaneous Application No. 34 of 2011.

For the above reasons, I agree with the applicants’ submission that section 19 (4)
which was never considered in Attorney General v Osotraco Ltd (supra) bars
issuance of an order of attachment for enforcing payment against Government
thereby answering the first issue in the affirmative.

As regards the 2nd issue, it is the applicants’ case that land which is subject of the
impugned Order belongs to Government in accordance with Article 239 of the
Constitution and section 49 of the Land Act. I agree with that position because it is
quite clear from the above provisions that the 2 nd applicant holds and manages land
on behalf of the Government of Uganda. I do not therefore find valid the argument
that land registered in the names of the 2 nd applicant does not belong to
Government.

In Kampala District Land Board & Another v. National Housing and

Construction Corporation SCCA no. 2 of 2004 Odoki CJ (as he then was) while
referring to the Uganda Land Commission observed that the main function of the
Land Commission is to hold and manage any land vested in or acquired by the
Government of Uganda.

In the circumstances, it is the firm view of this court that land registered in the
name of the 2nd applicant is Government property which is protected by section 19
(4) of the Government Proceedings Act and I so find.

I have also found difficulty in appreciating the arguments of counsel for the
respondent that section 19 of the Government Proceedings Act is in respect of
enforcement against government but not attachment of government property. That
argument in my view is self defeating especially in view of sub-section (4) of that
section which expressly prohibits issuance out of any court of any order for
enforcing payment by the Government of execution or attachment or process in the
nature of an execution or attachment.

In view of my findings on both issues, this application is allowed and the Order in
Miscellaneous Cause No. 486 of 2012 is set aside as it is barred by law.
For reason that the respondent was constrained to take the steps that gave rise to the
Order set aside due to the failure by Government to pay it, I decline to award costs
to the applicants. Consequently, each party shall bear its own costs.

I so order.

Dated this 9th day of July 2013

Hellen Obura
JUDGE

Ruling delivered in chambers at 3.00 pm in the presence of Ms.

Imelda Adong holding brief for Mr. Philip Mwaka for the applicants
and Mr. Richard Kabazi holding brief for Mr. Mohammed Mbabazi
for the respondent.

JUDGE

09/07/13