Amar Singh v Kulubya
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1963 |
| Year | 1963 |
| Date | 1963 |
| Court | Privy Council |
Eastern Africa - Uganda - Land transfer - Mailo land - Leased by registered proprietor to non-African - Absence of necessary statutory consent - Lessor's claim to possession - Lessee in illegal occupation - Parties not in pari delicto - Public policy -
The respondent, an African, who was the registered proprietor of certain “mailo” lands, purported by three agreements to lease the lands to the appellant, an Indian, but the consents of the Governor and the Lukiko to the transactions were not obtained as required by section 2 (d) of the Buganda Possession of Land Law, c. 25 of 1957 Revision, and section 2 of the Uganda Land Transfer Ordinance, c. 114 of the 1951 Revision, the result of the omission being that under the above statutes both the respondent and the appellant had contravened the law and committed punishable offences. On a claim by the respondent, based on his registered ownership of the lands, — his claim for rent and mesne profits having been abandoned — to possession and eviction of the appellant, the latter pleaded that the agreements by which the lands were leased were illegal in the absence of the necessary consents and that the respondent could not file an action on them. The respondent acknowledged that the transactions were illegal:—
Held, that the appellant was not, and never had been, in lawful occupation of the lands and could not rely on the illegal agreements as justifying any right or claim to remain in possession, and without doing so he could not defeat the respondent's claim. The respondent required no aid from the illegal transactions to establish his case; it was sufficient for him to show that he was the registered proprietor of the lands and that the appellant, a non-African, was in occupation without the consent of the Governor, and accordingly had no right to occupy.
Since the respondent was neither obliged to found his claim on the illegal agreements nor, in order to support his claim, to plead or to depend on them, he was not in pari delicto with the appellant. Further, this conclusion was reinforced by the relevant legislation which was intended to be for the benefit of Africans as a class — the respondent was a member of a protected class. He was therefore entitled to possession.
Though the respondent had offended by being a party to the illegal and ineffective agreements, considerations of public policy did not demand that his claim for possession should fail. It would be contrary to public policy to refuse to assist an African to eject a non-African in illegal occupation of the former's land, even though the African might have committed an illegal act in permitting the non-African to enter on the land.
APPEAL (No. 33 of 1961) from a judgment and order of the Court of Appeal for Eastern Africa (January 25, 1961) allowing the appeal of the present respondent (hereinafter called the plaintiff) from a judgment and decree of the High Court of Uganda at Kampala (August 3, 1960).
The following introductory statement is taken from the judgment of the Judicial-Committee: The issue which arose in the litigation was whether the plaintiff could by legal proceedings recover certain land from the appellant (the defendant) although the plaintiff had put the defendant into possession of the land and allowed him for some years to remain in possession of it following upon certain purported leases which were entered into in contravention of statutory enactments.
The plaintiff was an African. At all material times he was the registered proprietor of certain land of the class of land known as “Mailo” land. The land which was in question consisted of three plots situate near to Nakivubo, being plots “H,” “S” and “T” forming part of land comprised in Mailo Register Volume 750, Folio 12. The defendant was an Indian who resided at Nakivubo.
Certain statutory provisions call for mention. The Possession of Land Law (Cap. 25 of the 1957 Revised Edition of the Native Laws of Buganda) contained in paragraphs (d) and (k) of section 2 the following words (omitting such as are not for present purposes relevant):
“2. (d) The owner of a mailo shall not permit one who is not of the Protectorate to lease, occupy or use his mailo except with the approval in writing of the Governor and the Lukiko:
“……
“(k) The owner of a mailo who contravenes any provision of paragraph (c) or (d) of this section shall be liable on conviction to a fine not exceeding Shs.500/- or to imprisonment not exceeding six months or to both such fine and imprisonment.”
Sections 2, 3 and 4 (1) of the Land Transfer Ordinance (Cap. 114 of the 1951 Revised Edition of the Laws of Uganda), omitting the provisos to section 2 which are not relevant to this case, read as follows:
“2. No non-African or any person acting as his agent shall without the consent in writing of the Governor occupy or enter into possession of any land of which an African is registered as proprietor (otherwise than by receiving rents and profits payable by non-Africans who have gone into occupation or possession with the consent of the Governor) or make and contract to purchase or to take on lease or accept a gift inter vivos or a bequest of any such land or of any interest therein other than a security for money: …
“3. The Governor may refuse the consent mentioned in section 2 of this Ordinance without assigning any reason or may specify terms upon which such consent is conditional.
“4. (1) Any person who commits a breach of the provisions of this Ordinance or of any terms imposed by the Governor under section 3 shall be guilty of an offence and shall be liable on conviction to a fine not exceeding Shs.2,000 or to imprisonment for a period not exceeding twelve months or to both such fine and imprisonment.”
The plaintiff purported to lease plot T to the defendant for one year on November 1, 1946, at a rent of Shs.300/- per annum, the payment to be in advance. The plaintiff allowed the defendant to enter into possession and thereafter (though after the first year at a rent increased to Shs.350/- per annum) the defendant remained in possession. The approval of the Governor and the Lukiko was not then or at any time obtained. It followed that the plaintiff in permitting the defendant to lease, occupy and use his mailo was acting in contravention of the law and was committing an offence. The defendant was also acting in contravention of the law: he was committing an offence when he occupied and entered into possession of the land and when he made a contract to take the land on lease.
Plot H...
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