[2025] UGHCLD 118

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT NO. 728 OF 2017**

**SHEILA AGONZIBWA NDAGANO :::::::::::::::::::::::::::::::::: PLAINTIFF** 10

#### **VERSUS**

### **1. KAMPALA DISTRICT LAND BOARD 2. MAJEST. COM LTD :::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

## 15 *Before: Hon. Lady Justice Immaculate Busingye Byaruhanga JUDGMENT*

The plaintiff brought this suit against the defendants jointly and severally for a declaration that the plaintiff had the first right to be allocated the suit premises found at Plot 25 Clement Hill Road, special and general damages for the illegal and 20 wrongful eviction and demolition of the plaintiff's property and costs of the suit.

In the facts constituting the plaintiffs' cause of action, the plaintiff contended that at all material times the plaintiff was a sitting tenant/ occupant of the property found at plot 25 Clement Hill road having rented the same from Dharansi Chaatrabbij Sorce and Lilarati Dhatsansi Sorce through their attorney. The plaintiff further contended 25 that there was a term in the tenancy agreement that the plaintiff would have a first right of purchase of the said property in case her landlords lost interest in the same and in the alternative, the plaintiff had a legitimate right of expectation of owning the property and/or being allocated the same in case her landlord was disinterested.

The plaintiff further averred that pursuant to the said tenancy agreement, the plaintiff 30 improved the property and made it a hotel which all along run as Clement Hill Hotel by a sub-tenant. The plaintiff contended that without the consent of the plaintiff as the sitting tenant, the 1st defendant allocated the suit land to the 2nd defendant on


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- 5 allegation that the lease had expired, yet, prior to the allocation, the plaintiff's landlord had applied for renewal of the lease. That following the said allocation, the 2 nd defendant procured registration of itself as proprietor of the suit premises and holds a certificate of title for LRV 4527 Folio 2, Plot 25 Clement Hill Road for the said property. - 10 On the other hand, the defendants denied the plaintiffs' claims and proceeded to contend as follows; - 1. The 1st defendant contended that the lease extension granted in 2009 was conditional upon fulfillment of the terms of extension within a period of 30 days. - 15 2. That the applicant neither secured the formal offer letter nor did he make the payments for premium and ground rent with the said 30-day period despite reminders by the 1st defendant. - 3. That in addition to the above, the registered proprietor's attorney informed the 1 st defendant that the registered proprietor would not be in position to pay the - 20 premium and ground rent payments and thus did not wish to have further interest in the land. - 4. That in light of the above facts, the lease term had expired, the land become available for leasing. - 5. That upon receipt of an application for the land by the 2nd defendant, the 1st 25 defendant proceeded to carry out the required due diligence checks to ascertain the status on the land and whether it could be granted to the 2nd defendant. - 6. That the Area Land Committee informed the 1st defendant that the land was free from any encumbrance of any other party and thus recommended for grant of the land to the 2nd 30 defendant.


7. That the 1st 5 defendant having made bonafide efforts to ascertain the availability of the suit property and basing on the information availed to it as mentioned above proceeded to approve and grant the lease to the 2nd defendant in accordance with the powers held under the Land Act.

The 2nd defendant contended that;

- 10 1. The plaintiff is not a sitting tenant of the suit property and any interest that the plaintiff may have had or claimed for under the tenancy agreement with the lessor of the property extinguished when the lessee declined or opted not to accept and perform the conditions for renewal of the lease over the property. - 2. The second defendant further contends that upon the lessee failing to perform 15 the conditions for renewal of the lease, the lessee's right to first priority to renew the lease over the suit property was extinguished and at that time, the second defendant applied for a lease in November 2009, the property was available for leasing. - 3. The 2nd defendant also avers that it acquired a valid title to the land after the 20 former lessees failed to perform their obligations and subsequently renounced all their interest in the property. - 4. That by the time the 2nd defendant applied for a grant of the lease over the property, the former lessees had declined or failed to take up the lease offer and the plaintiff had no interest in the suit land since its tenancy from the 25 former lessees had expired. - 5. The second defendant also contended that the occupants who were unlawfully in occupation of the property were duly and lawfully evicted pursuant to a valid court order.


#### 5 **Parties' Legal representation**

During trial, the plaintiff was represented by **Counsel Brian Othieno**, the 1 st defendant was represented by **Counsel Mwasame Nicholas** while the 2nd defendant was represented by **Counsel Ackram Matovu.**

In the joint scheduling memorandum filed on 21stMarch 2023, the parties and their 10 respective counsel agreed upon documents and formulated issues for determination as follows;

#### **Issues for determination**

- 1. *Whether the plaintiff has a cause of action against the defendants.* - 2. *Whether the 2nd defendant acquired its certificate of title fraudulently and or* 15 *illegally.* - 3. *Whether the plaintiff was lawfully evicted by the 2nd defendant and demolished pursuant to a court order.* - 4. *Whether the plaintiff suffered any loss due to the actions of the 2nd defendant.* - 5. *What remedies are available to the parties.* - 20 The parties also agreed to adduce evidence from witnesses. The plaintiff adduced evidence from two witnesses the plaintiff herself Sheila Agonzibwa **(Pw1), and** Mukuru Yoweri Mutabazi **(Pw2),** while the defendants adduced evidence from two witness as well Sam Bitangano **(Dw1)** and Emmy Waligo **(Dw2).**

The parties also relied on documentary evidence which was marked and exhibited. 25 The plaintiff relied on the following documents;

*1. Tenancy agreement between plaintiff and Dharamsi Chatrabhuj marked PExh.1*


- 5 *2. Tenancy Agreement between Dharamsi Chatrabhuj and Lilavati Dharamsi (tenants in common) and plaintiff marked PExh.2* - *3. Application for renewal of lease by Whittaker Ltd marked PExh.3* - *4. Letter from Kampala District Land Board confirming renewal of lease marked PExh.4* - 10 *5. Lease/ sublease offer marked PExh.5* - *6. URA receipt for processing lease in lessee's names marked PExh.6* - *7. KCCA receipt number 96976 for Ug. Shs. 20,000,000 marked PExh.7* - *8. KCCA receipt number 96977 for Ug. Shs. 20,00,000 marked PExh.8* - *9. KCCA receipt number 13446 for Ug. Shs. 4,000,000 marked PExh.9* - 15 *10. BAF No. 51304 for Ug. Shs. 20,000,000 marked PExh.10*

*11. BAF No. 51305 for Ug. Shs 20,000,000 marked PExh.11*

- *12. Letter of complaint to Minister of Local Government by Whittaker Ltd dated 11th January 2010 marked PExh.12* - *13. Response to letter by Minister of Local Government dated 21st January 2010* 20 *marked PExh.13* - *14.1 st defendant's letter Acting Town Clerk dated 1st February 2010 concerning suit property marked PExh.15* - *15. Plaint and summons in HCCS No. 486 of 2015 between the 2nd defendant and Renne Richardson marked PExh.15* - 25 *16. Decree in CS 486 of 2015 marked PExh.16* - *17. Warrant to give vacant possessions in EMA 1338 of 2015 arising from C. S. 486 of 2015 marked PExh.17* - *18. Letter by Clement Hill Hotel inquiring about demolition of property marked PExh.18* - 30 *19. Letter by KCCA on the demolition dated 1/2/2016 marked PExh.19 20. Ruling M. A. No. 476 of 2015 marked PExh.20.*


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- 5 *21. WSD in C. S No. 486 of 2015 marked PExh.21 22. Letter by Clement Hill Hotel to National Water & Sewerage Corporation marked PExh.22 23. Letter by Clement Hill Hotel to Umeme Ltd marked PExh.23 24. Letter about failure to register caveat to commissioner of land marked* 10 *PExh.24. 25. Certificate of registration of Clement Hill Hotel marked PExh.25 26. List of property lost during demolition and their values marked PExh.26 27. Letter from Mayor of Kampala dated 2nd February 2010 addressed to the Chairman Kampala District Land Board marked PExh.27* - *28. Lease offer dated 26th* 15 *August 2009 between KDLB and Dharamsi Soree marked PExh.28*

While the defendants relied on the following documents;

- *1. Letter to the Ag. Commissioner Land Inspection Ministry of Land, Housing and Urban Development marked DExh.1* - 20 *2. Certificate of title marked DExh.2* - *3. Letter to KDLB from city counsel of Kampala dated 25th February 2009 marked DExh.3* - *4. Letter to Mulira & Co. Advocates KDLB dated 23/6/2009 marked DExh.4* - *5. Power of Attorney appointing Peter Mulira marked DExh.5* - *6. Letter from KDLB to Mulira & Co. Advocates dated 24th* 25 *September 2009 marked DExh.6* - *7. Letter from Mulira & Co Advocates to KDLB dated 27th October 2009 marked DExh.7* - *8. Letter from Mulira & Co. Advocates to KDLB dated 5/8/2009 marked* - 30 *DExh.8*


- *9. Letter from Mulira & Co. Advocates to Town Clerk dated 2nd* 5 *November 2009 marked DExh.9* - *10. Power of Attorney dated 30th July 2003 marked DExh.10* - *11. Letter from Mulira & Co. Advocates to KDLB dated 21st August 2009 marked DExh.11* - *12. Letter from KDLB to Mulira & Co. Advocates dated 24th* 10 *September 2009 marked DExh.12* - *13. Letter from Mulira & Co. Advocates to KDLB dated 16th October 2009 marked DExh.13* - *14. Letter from Mulira & Co. Advocates to KDLB dated 22nd October 2009* 15 *marked DExh.14* - *15. Area Land Committee Letter dated 8th October 2019 marked DExh.15 16. Letter to Mayast Com. Ltd dated 26th November 2009 marked DExh.16 17. Receipt marked DExh.17* - *18. Certificate of title in the names of Majest. Com Ltd marked DExh.18* - *19. Letter from Ministry of Land to KDLB dated 13th* 20 *June 2019 marked DExh.19* - *20. Ground rent revision dated 23th July 2017 marked DExh.20*

*21. Application for a leasehold by Majestic.com Limited marked DExh.21*

#### **Locus visit**

On the 28 25 th March 2025, while in the attendance of Counsel for the plaintiff and the defendants, the plaintiff, Ackram Matovu for the 2nd defendant and Mr. Bitangaro, the Managing Director for the 2nd defendant , court visited locus in quo pursuant to **Practice Direction No. 1 of 2007** which stipulates that courts handling land matters should as so far as possible, *interest themselves in physically visiting properties*

5 *under dispute before pronouncing themselves on the proprietary rights of the parties.* Order 18 rule 14 of the Civil Procedure Rules provides for the same.

Therefore, the purpose of visiting the *locus in quo* in a nutshell, is to clarify on evidence already adduced in court thereby enabling the trial court to understand the evidence better. It is also intended to harness the physical aspects of the evidence in

10 conveying and enhancing the meaning of oral testimony and therefore must be limited to an inspection of the specific aspects of the case as canvassed during the oral testimony in court and testing the evidence on those points only. *(***See Odongo Ochama Hussein versus Adul Rajabi HCCA No. 119 of 2018***)*

#### **Burden and standard of proof in Civil Cases**

#### 15 **Section 101(1) and (2) of the Evidence Act Cap.8 (Revised) Laws of Uganda**,

"*Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he or she asserts must prove that those facts exist."*

When a person is bound to prove the existence of any fact, it is said that the burden 20 of proof lies on that person. **Section 102 of the Evidence Act** goes on to provide that;

*"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side and Section 103 provides that "the burden of proof as to any particular fact lies on* 25 *that person who wishes the court to believe in its existence unless it is provided by any law that proof of that fact shall lie on any particular person".*


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5 These principles have been reiterated in so many judicial precedents where it has been decided that in civil matters just like the instant case, the burden of proof rests on whoever asserts a fact and the standard of proof is on a balance of probabilities. (See **Jovelyn Barugahare v. Attorney General SCCA No. 28 of 1993)**

#### **Background of the suit**

10 The plaintiff and the registered owners Dharamsi Chatrabhuj Soree and Lilavati Dharamsi executed a tenancy agreement commencing from 1st September 2002 for a period of 6 years, 7 months and 18 days until the 18th of April 2009 when the lead lease would terminate (**PExh.1 and PExh.2).** The plaintiff claims that on 15th January 2009, the Chairman Whittaker Limited wrote to the Secretary of the 1st 15 defendant requesting for the lease on the suit land to be renewed in the names of owners Dharamsi Chatrabhuj Soree and Lilavati Dharamsi, while holding powers of attorney of Mrs. Lilavati Dharamsi (**PExh.4)**.

On 9th April 2009, the 1st defendant wrote to Dharamsi Chatrabhuj Soree and Lilavati Dharamsi informing them about the renewal of the lease for 49 years and the lessees 20 were required to contact the Commissioner Land Registration to secure a formal lease offer **(PExh.5)** and thereafter pay within thirty days a premium of Ug. Shs. 40,000,000 (Uganda shillings forty million) to Kampala Capital City and ground rent to a tune of Ug. Shs. 4,000,000 (Uganda Shillings four million) per annum **(PExh.4),** which money was allegedly paid including the lease processing fees **(PExh.6)** paid on 13 25 th November 2009 to a tune Ug. Shs. 2,050,000(Uganda Shillings two million fifty thousand), the premium paid in two installments vide Kampala City Council receipts 00053188 and 00053189 both to a tune of Ug. Shs. 20,000,000 (Uganda shillings twenty million) both on 29th June 2009 **(PExh.8 and PExh.9) (see also PExh.10-11)** and ground rent payment vide Kampala City Council receipt serial

 5 number 0017328 to a tune of Ug. Shs. 4,000,000 (Uganda shillings four million) **(PExh.9)**

Subsequently on 11th January 2010, the plaintiff communicated her concerns about the reallocation of the suit property to the Minister of Local Government (PExh.12) and the latter wrote to the Acting Town Clerk of Kampala City Council on 21st 10 January 2010 seeking for a report on the same (PExh.13). The Town Clerk responded to the aforementioned correspondence on 1st February 2010 wherein the former

- averred that 1st defendant recalled the lease renewal initially issued to Dharamsi Chatrabhuj Soree and Lilavati Dharamsi on account of alleged fraud and opted to return money paid by Whitaker Limited since Richardson Whittaker did not have a 15 proper powers of attorney for Lilavati Dharamsi as one of the lessees of the suit land - (DExh.7).

Furthermore, it was averred that the lessees Dharamsi Chatrabhuj Soree and Lilavati Dharamsi through their lawful attorney Mulira & Co Advocates informed the 1st defendant that they were living in the United Kingdom and were not in position to

20 pay the premium and ground rent and had requested Mulira and Co. Advocates to raise the money locally however, the company had failed hence the lessees' loss of interest in the suit property (DExh.13 and DExh.14).

The Town Clerk also contended that since the lessees had failed to fulfill the said terms under PExh.5 and the suit land was reallocated to the 2nd defendant who could

25 generate more revenue for Kampala City Council (DExh.15) to a tune of Ug Shs. 250,000,000 (Uganda Shillings two hundred fifty million) as the premium, ground rent to a tune of Ug Shs. 12,500,000 (Uganda Shillings twelve million five hundred thousand) per annum and these payments were made by the 2nd defendant **(DExh.16 and DExh.17**), after which the suit land was leased and registered in the 2nd


defendant's names on 14 5 th April 2014 vide instrument number 486997 at 8:50am **(DExh.19)**.

The plaintiff claims that despite being a sitting tenant on the suit land, the 1st defendant unlawfully allocated and leased the suit land to the 2nd defendant who subsequently demolished the plaintiff's structures **(PExh.22 and 23)** hence giving 10 rise to the institution of this suit**.**

## **RESOLUTION OF ISSUES**

**Issue No.1**: Whether the plaintiff has a cause of action against the defendants.

It is counsel for the plaintiff's submission that in order to demonstrate a cause of action, a plaintiff must prove that she has a right, that the right has been violated and 15 that the violation was by the defendant. It is counsel's further submission that it was the plaintiff's testimony in corroboration with Pw2 that the plaintiff was in occupation of the suit land carrying out a hotel business as a tenant of the registered lessees of the suit land. Counsel further argued that the plaintiff's right to occupy the suit land was infringed when the 2nd defendant violently evicted the plaintiff and the 20 hotel building was demolished as was confirmed during the locus in quo visit, yet no demolition order was furnished in evidence to prove the legitimacy of the plaintiff's eviction and the demolition of her hotel.

In regards, to the 1st defendant, counsel for the plaintiff submitted that the former illegally allocated the land to the 2nd defendant yet the lease of the suit property had

25 already been renewed in favour of the plaintiff's landlords /the lessees to the suit land vide Minute No. KDLB4/8/2009 of the meeting of 25th February 2009. Counsel argued that the reallocation of the property to the 2nd defendant when the property was not available for leasing was the root cause of all acts that affected the plaintiff's rights of occupation and use of the land.

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- On the other hand, counsel for the 1st 5 defendant submitted that the existence plaintiff's claim is premised on the fact that the plaintiff is a sitting tenant and has a right of legitimate expectation that the suit land would be allocated to the plaintiff after the expiry of the lease. Counsel cited the case of *Lagen Majorie v. James Okot Okumu HCCA No. 74 of 2016* where Justice Mubiru held that claims based on 10 legitimate expectation do not necessarily require reliance on representation and resulting detriment to the claimant in the same way as claims based on promissory estoppel. But rather the court uses its discretion to decide whether to frustrate the expectation...". Counsel further emphasized the fact that the principle of legitimate expectation relates to leases over land and argued that it is evident in the instant case - 15 that the plaintiff was never a lessee on the suit land, hence cannot claim under this principle.

Counsel also submitted that the other right that the plaintiff claims is that of a sitting tenant. Counsel cited the case of *Kampala District Land Board and Chemical Distributors v. National Housing and Construction Corporation SCCA No. 2 of*

- 20 *2004* where it was held that a sitting tenant should be given the first priority to lease land if it is being leased. Counsel argued that a sitting tenant must express interest by applying for a lease, which was not the case in this matter as no application was furnished by the plaintiff or her husband for a lease of the suit land to the 1st defendant. - Counsel for the 1st defendant further submitted that it should be noted that the 1st 25 defendant while allocating land always acts on the recommendation of the area land committees who draw their authority from KCCA (Kampala Capital City Authority) as their appointing authority, which body has distinct legal personality from the 1st defendant hence, any errors committed by the area land committees are borne by - 30 KCCA as their appointing authority. Counsel cited the case *of Rwenzori Cotton*


5 *Ginners v. KCCA, KDLB & 3 ors HCCS No. 624 of 2016***,** wherein the Hon. Justice Dr. Flavian Zeija (Principal Judge Emeritus) stated at page 11 of his Judgment that; *"… The land committees have no existence of their own. It is the 2nd defendant (KCCA) that is the appointing authority and any liability accruing from their actions or omissions accrue to it as the appointing authority".*

- Counsel submitted that the 1st 10 defendant acted on a recommendation of the area land committee arising from a meeting held on 8th October 2009 under minute K. C. D. A. L Min 01/10/2009, to allocate and lease the suit land to the 2nd defendant following the procedure stipulated under **Regulation 16 of the Land Regulations of 2004**. - In regards to violation of the right, counsel for the 1st defendant submitted that the 15 plaintiff alleges that her husband applied for extension of a lease as an agent of the former lessees, however, it was counsel's argument that the power of attorney presented by the plaintiff's husband was illegal as the same did not confirm to the standards of such instruments as laid out in **Section 147 of the Registration of Titles Act** which requires such documents to be duly executed and attested. - Counsel further argued that the 1st 20 defendant received a letter from Mulira & Co Advocates wherein it was stated that Peter Mulira has powers of attorney for the former lessees and unlike the instrument presented by the plaintiff's husband, the one presented by Mulira & Co Advocates was properly executed, attested, notarized and registered hence the law dictated that the 1st defendant gives due consideration - 25 to the latter instrument which was a legally valid document over the former which was defective.

Counsel for the 1st defendant went ahead to submit that the 1st defendant received a letter from the Mulira & Co Advocates applying for renewal of the lease over the suit land by the former lessees but before the process would be concluded, another


letter was received from the same law firm informing the 1st 5 defendant that the former lessees were no longer interested in renewing the lease.

In conclusion, counsel for the 1st defendant submitted that in the absence of an application for a lease by the plaintiff confirmed that there was indeed no interest in the suit land by the plaintiff or her late husband to warrant an allocation by the 1st 10 defendant hence the plaintiff could claim to have legitimate expectation. In summation, counsel submitted that the 1st defendant's allocation of the suit land to the 2nd defendant was lawful and free of fraud and in the event of any irregularities, the same arose as the area land committee carrying out its functions, which cannot be attributed to the 1st defendant.

- In further reply to counsel for the plaintiff's submission, counsel for the 2nd 15 defendant submitted that a plaintiff can enjoy a right to bring an action only if they have legal standing or locus standi to bring a suit. Counsel cited the case *of Keki Veronica v. Kassam & 2 ors [2020] UGHC 195***,** wherein the Honourable Lady Justice Eva K Luswata noted that locus standi is extrinsically linked to cause of - 20 action. Counsel went ahead to submit that the plaintiff who was a tenant on the suit land which is formerly expropriated property is suing the defendants for allegedly fraudulently acquiring letters of repossession.

Counsel further argued that for a person to claim legal standing, their claim in the property has to stem from legal or equitable interests. Counsel cited the case of

25 *Komakech & ors v. Ayaa & anor Civil Appeal No. 28 of 2016***,** where it was stated that; "*the definition of a tenant is very wide but for all intents and purposes includes all persons who occupy premises lawfully*". Counsel further referred to the holding in *Joy Tumushabe &Anor v. M/S Anglo-African Ltd & Anor, SCCA No. 7 of 1999* where Justice Kanyeihamba held that a tenant's claim to property only extends to 30 the rights granted in the tenancy agreement; which are merely rights of peaceful


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5 occupation (usually for a duration of time) as was the case here; such rights usually being guaranteed on certain conditions, including payment of rent.

Counsel submitted that the plaintiff was never allocated the suit land by the 1st defendant hence the plaintiff has never been clothed with proprietary rights over the suit property and as such the plaintiff lacks locus standi. In the premises, counsel 10 submitted that the suit be dismissed under Order 6 rule 29 of the Civil Procedure Rules.

## *Determination*

As intimated by counsel for the 2nd defendant in his submissions, it is rather difficult to detach locus standi from cause of action. It is important to understand what 15 constitutes locus standi.

According to the **Black's Law Dictionary 8th Edition, 2004,** locus standi is defined as the right to bring an action or to be heard in a given forum. Similarly, the term *'locus standi'* was defined in *Njau & ors v. City Council of Nairobi (1976-1985)1 RA a 397 at 407 as cited in Dima Domnic Poro v. Inyani Godfrey & Anor HCCA*

20 *No. 17 of 2016,* as a place of standing. Court went ahead to state that it means a right to appear in court, and conversely to say that a person has locus standi means that he has a right to appear or be heard in a specified proceeding.

In the case of *Mukisa Biscuit v. West End Distributors (1969) EA 696, the term locus standi was defined as a place of standing which means a right to appear in*

25 *court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in a specified proceeding.*

Similarly, in the matter of *Bank of Uganda & Anor v. Kaweesi Sulaiman & ORS High Court Commercial Division Miscellaneous Application No. 1047 of 2022***,**


5 while resolving an issue on locus standi, Hon. Justice Stephen Mubiru stated inter alia that;

*"To say that a person has no locus standi means the person cannot be heard, even on whether or not he has a case worth listening to. In Uganda's judicial system, any person who suffers some damage or injury from the act of a* 10 *private individual or of the state can approach the court. … To have a locus standi, a claimant must have sufficient interest in the matter to which the claim relates. What constitutes "sufficient interest" will essentially depend on the co-relation between the matter brought before the Court and the person who is bringing it. Important to the exercise of the Court's jurisdiction are* 15 *the questions whether the party seeking relief is directly affected by the act or omission in question or whether the party has a real stake in the validity of such act or omission. One must justify such right by showing that one has a direct and substantial interest in the outcome of the litigation. Such an interest is legal in the subject-matter of the action which could be* 20 *prejudicially affected by the judgment of the court. A party must have a direct financial or legal interest in the outcome of the suit".*

His Lordship further noted that;

25 *"In order to determine whether or not the claimant has locus standi, the Court starts by separating the claimant's legal conclusions (legally operative factual conclusions) from its factual allegations (supporting facts). The Court then assumes the factual allegations are true (even if doubtful in fact), and asks whether those factual allegations state a valid legal claim. To* 30 *establish a cause of action, a plaint must allege facts suggestive of illegal or wrongful conduct and also demonstrate a plausible entitlement to relief above the speculative level. Conclusory allegations, with no factual support, are insufficient to state a claim. In the instant case the material factual allegations are that the 1st applicant consolidated the assets of the seventeen companies with those of the 2nd* 35 *applicant and disposed of them. The conclusory allegation is that the sale was at an undervalue, while the claimed basis of entitlement to relief is that the consolidation and sales were to the detriment of the respondents as shareholders in the respective companies".*

A party's locus standi is manifested in their ability to disclose a cause of action in

40 their pleadings. **Order 7 rule 1 (e) of the Civil Procedure Rules** requires that a plaint must contain facts constituting the cause of action and when it arose.

- 5 Furthermore, the same Order under **rule 11** states that a plaint which does not disclose a cause of action must be rejected. According to the Black's law Dictionary, 8 th Edition (2004) at page 664, the phrase, "*cause of action"* is defined as a group of operative facts giving rise to one or more bases for suing a factual situation that entitles one person to obtain a remedy in court from another person. In the case of - 10 *Uganda Aluminum Ltd v. Restetuta Twinomugisha C. A. C. A No.22 of 2000***,** cause of action was defined as every fact which is material to be proved to enable the plaintiff succeed or every fact which if denied, the plaintiff must prove in order to obtain judgment. - In the case of *Attorney General v. Oluoch (1972) EA 392***,** it was held that the 15 question of whether a plaint discloses a cause of action is determined upon perusal of the plaint and attachments thereto with an assumption that the facts pleaded or implied therein are true. Similarly, in the matter of *Ismail Serugo v. KCCA & Anor Constitutional Appeal No. 2 of 1998, at page* **3** of Wambuzi CJ (as he then was) held at page 3 of his Judgment that *in determining whether a plaint discloses a cause* - 20 *of action under Order 7 rule 11 of the Civil Procedure Rules or a reasonable cause of action under Order 6 rule 30 of the same rules, only the plaint must be perused*. It was further decided that *where a plaint does not disclose a cause of action, it is mandatory for a court to strike it out under Order 7 rule 11 (a)*".

A cause of action is disclosed when it is shown that the plaintiff had a right and the 25 right was violated resulting into damages and the defendant is liable. In the decision of *Tororo Cement Co. Ltd v. Frokina International Ltd S. C. Civil Appeal No. 2 of 2001,* Justice Oder (JSC) stated that,

*"A cause of action means every fact hold that which is material to be proved to enable the plaintiff to succeed or every fact which, if denied,* 30 *the plaintiff must prove in order to obtain judgment. The Hon. Justice went ahead to say that …. "what is important in considering whether*


5 *a cause of action is revealed by the pleadings are the questions whether a right exists and whether it has been violated. The guidelines were stated by the Court of Appeal for East Africa in Auto Garage versus Motokov no.3 1971 EA 514. They are;*

*a. The plaint must show that the plaintiff enjoyed a right.*

- 10 *b. That right has been violated; and* - *c. That the defendant is liable".*

Justice Oder went ahead to suggest that if all three elements are present, then cause of action is disclosed and any defect or omission can be put right by amendment.

Owing to the above authorities, in order to determine whether the plaintiff has any

15 cause of action against the defendants, I shall consider the plaint and any annextures thereto as well as the evidence on record as a whole since this is an issue for final determination. In the instant case, the plaintiff's claim against the defendants is fraud.

Guideline 1: The plaint must show that the plaintiff enjoyed a right

20 At all material times, it was the plaintiff's testimony (paragraph 2 of plaintiff's witness statement) that she was a sitting tenant on the suit land having entered into a tenancy agreement with the former lessees of Dharamsi Chatrabhuj Soree and Lilavati Dharamsi (PExh.1) on 1st September 2002 for a period of 6 years and 7 months and 18 days and the same was retaliated by the plaintiff during cross examination by counsel for the 1st 25 defendant. In addition, in paragraph 29 of her witness statement, the plaintiff stated that she had a legitimate expectation to be allocated the suit land by the 1st defendant in case the lessees were no longer interested in the same as was expressed in PExh.2.

In the case of *Lagen Majorie v. James Okot Okumu HCCA No. 74 of 2016***,** the 30 Honourable Justice Stephen Mubiru at paragraph 27, of his judgement cited and relied on the Supreme Court case of *Kampala District Land Board and Chemical* 5 *Distributors v. National Housing and Construction Corporation S. C. C. A No. 2 of 2004,* wherein it was held that sitting tenants should be given the first priority to lease land if it is being leased.

Since the property in dispute is expropriated property, I shall borrow the description of a tenant as expressed in **Section 10 (1) of the Expropriated Properties Act** 10 which stipulates that;

*"Any person who, at the commencement of this Act, is legitimately occupying or managing property or a business affected by Section 2 shall continue to so occupy or manage the property or business until the property or business is returned to the former owner or is sold or* 15 *otherwise disposed of under this Act".*

The **Cambridge Business English Dictionary** defines a 'sitting tenant' or 'tenant in situ' as someone with the legal right to remain in property that they are renting and who cannot be forced to leave by its owner. The point of determination at this point is whether a sitting tenant acquires any proprietary rights or interests in land to 20 warrant automatic allocation in case of a lease.

In the matter of *Joy Tumushabe &Anor v. Angolo-African Ltd & Anor SCCA No.7 of 1999***,** Hon. Justice Prof. Kanyeihamba (as he then was) stated at page 7 of his Judgment that;

"*… A tenant's claim to a property only extends to the rights granted in* 25 *the tenancy agreement. They are merely rights of peaceful occupation (usually for a duration of time) as was the case here, such rights usually being guaranteed on certain conditions, including payment of rent. A tenant cannot in law challenge the rights of a registered owner/landlord, even where they suspect that the title is questionable* 30 *…".*

With the guidance of the above precedent, it is event that a tenant is not clothed with any proprietary interest as a result of a mere tenancy agreement. However, the

- 5 plaintiff claims that she had a legitimate expectation of allocation of the suit land once the former lessees lost interest in the suit land requires to be resolved. In relation to property/ land law, in the case of *Lagen Majorie v. James Okot Okumu (supra), Justice Mubiru* had this to say about the principle of legitimate expectation at page 12 of his Judgment; - 10 *"A lessee holding over for at the end of a lease over former public land acquires an equitable interest in it on account of the principle of legitimate expectation. A legitimate expectation is said to arise as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority. Therefore, it extends to a benefit* 15 *that an individual has received and can legitimately expect to continue or a benefit that he or she expects to receive. It is the practice by lessors of former public land, for good cause, to grant extensions or renewals of leases whose initial term has expired. A legitimate expectation arises when a public body by representation or by past practice arouses expectation which it would be* 20 *within its powers to fulfil. Claims based on legitimate expectation do not necessarily require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel".* (emphasis on the underlined)

My take from the Lagen case is that the principle of legitimate expectation relates to 25 lessees or persons holding operative leases over land that are soon to expire. I have gone through the record of court in the instant case, and I have come to the conclusion that the plaintiff was merely a tenant of the former lessees of the suit land Dharamsi Chatrabhuj Soree and Lilavati Dharamsi who held a lease over former public land with the 1st defendant as their landlord, a fact that was uncontested.

30 Therefore, the principle of legitimate expectation applied to Dharamsi Chatrabhuj Soree and Lilavati Dharamsi as former lessees and the same did not extend to the plaintiff simply because she was a tenant of the former lessees.

In addition, even as a sitting tenant, the plaintiff could only exercise her option of first purchase of the suit land once the lessees lost interest, if she had applied for the

- lease from the 1st 5 defendant in accordance with **Regulation 16 of the Land Regulations, 2004** through **form 8,** which doesn't seem to be the case. I have also noted that during cross-examination by counsel for the second defendant (Mr. Matovu), the plaintiff testified that her only interest in the suit land was to run the hotel as there was no arrangement between herself and the 1st defendant. - 10 The plaintiff being an educated person as was expressed during cross-examination where she told court that she is Diploma Holder in Accounting as well as a Diploma holder in Sports Management coupled with her experience as a Director of Whittaker Limited a property management company as was intimated in (PExh.12), did not expect an allocation of the suit land to fall in her laps without a proper application - 15 for the same in accordance with the applicable laws.

In light of above, I am not convinced that the plaintiff had a right to be allocated the suit land by the 1st defendant and neither did she have any proprietary rights or interests in the suit land by virtue of being a tenant of the former lessees of the suit land. Therefore, this element has not been fulfilled.

20 Elements 2 and 3: That right has been violated; **and** That the defendant is liable Reference is made to the determination that was made in element 1. Having found that the plaintiff did not have any claim of right over the suit land in the first place, there is no right violated.

This notwithstanding, the plaintiff stated in paragraph 6 of her witness statement,

25 that her late husband was a holder of powers of attorney for one of the lessees Lilavati Dharamsi to be exact as seen in PExh.3 and it was her husband who applied to renew the lease on 15th January 2009 (PExh.3). I have noticed that the extension offer of the lease from the 1st defendant (PExh.4 and PExh.5) was made to the former


5 lessees Dharamsi Chatrabhuj Soree and Lilavati Dharamsi and not the plaintiff's late husband.

Secondly, the lease processing fees receipt (PExh.6) issued by Uganda Revenue Authority (URA) serial number 4959501, the premium payment receipts issued by KCC (Kampala City Council) serial numbers 00053188 and 00053189 (PExh.7 and

- 10 PExh.8 respectively), the ground rent receipt issued by KCC serial number 00017328 (PExh.9) as well as the bank payment forms serial numbers 51304 and 51305 for the payment of the premium issued by KCC (PExh.10 and PExh.11 respectively) were all issued to the former lessees and not the plaintiff's husband as the holder of powers of attorney of one of the former lessees of the suit land. - 15 When it comes to powers of attorney, the law has laid out strict tenets of instruments of this nature. **Section 131 (formerly 147) of the Registration of Titles Act, Cap 240 Revised Laws of Uganda,** stipulates that;

*"instruments and powers of attorney musts be signed by any person and attested to by one witness shall be held to be duly executed and that witness* 20 *may be (b)(i) … either a notary public or else the mayor or other chief officer of any city or municipal corporation within the United Kingdom of Great Britain and Northern Ireland or the Republic of Ireland".*

I have critically studied the impugned power of attorney issued by Mrs. Lilavati Dhramsi Soree to Mr. Rennie A Richardson dated 30th June 2003 appointing the 25 latter as the lawful attorney of the former to deal, manage and administer all the former's properties, and I have realized that none of the tenets stipulated in Section 131(supra) appear in this instrument.

On the other hand, Dw1 (Emmy Waligo) the Secretary of the 1st defendant testified during cross-examination that the 1st defendant received another application for

30 renewal of a lease from the former lessee Lilavati Dharamsi Soree's lawful attorney Peter Mulira operating under Mulira & Co Advocates on 23rd June 2009. I have

5 studied this instrument (DExh.5) which is considerably comparable to the formerly discussed instrument; DExh.5 was signed by the donor (Lilavati Dharamsi Soree) and the same was notarized by a Notary Public Jacqueline Ann Bune Linsell of 235 Preston Road, Wembley Middlesex HA8 8PE England. Therefore, DExh.5 fulfills the requirements of instruments of this nature as per Section 131 of the Registration 10 of Titles Act (RTA).

Therefore, the 1st defendant acted within their authority to recall the extension of lease offer which was initially made to the plaintiff's late husband as an agent of one of the former lessees Lilavati Dharamsi Soree (PExh.4 and PExh.5) upon discovery that he did not hold a valid power of attorney of Lilavati Dharamsi Soree and 15 subsequently considering the application for renewal of the lease which was filed by the Mulira & Co Advocates, the lawful attorney of the former lessee on 23rd June 2009) (DExh.4) and an offer was made by the 1st defendant on 24th September 2009 (DExh.6). I have also observed from DExh.11 and DExh.13 that upon the demise of one of former lessees Dharamsi Chatrabhuj Soree, the surviving lessee through the lawful attorney Peter Mulira c/o Mulira & Co Advocates wrote to the 1st 20 defendant

- expressing his loss of interest in the suit property (DExh.13 and DExh.14). It was upon this background that the 1st defendant considered the 2nd plaintiff's application for allocation of the suit land and issued the same with an offer on 26th November 2009(DExh.15). - I observed that counsel for the plaintiff submitted that the 1st 25 defendant never produced any minute cancelling the earlier lease extension offer issued to the former lessees as per PExh.4 before proceeding to make a new offer to Mulira & Co Advocates as the lawful attorney of Lilavati Dharamsi Soree, the former lessee (DExh.6). Rightly so, I have not seen such a minute, but this notwithstanding both


5 offers were made to the former lessees, the only difference between them is the agents behind the transactions.

The proprietary interests of the lessees do not transfer to the agent, therefore, I fail to see the point of contention. Whether the plaintiff's late husband applied on behalf of the former lessees or Peter Mulira as agents, the legitimate expectation of renewal 10 or extension of the lease was vested in the former lessees who enjoyed proprietary

rights and not their agents.

In light with these facts and evidence, I am convinced that the 1st defendant did not violate the plaintiff's purported right of ownership of the suit land since there was none to begin with.

- In regards to the 2nd 15 defendant, the plaintiff contended in paragraph 12 of the affidavit in support of the application that the 2nd defendant colluded with the 1st defendant to obtain allocation of the property to defeat the plaintiff's rights as a sitting tenant on the suit land. This particular issue shall be best determined in the next issue. - 20 In the premises, I find that the plaintiff does not have a cause of action against the 1 st defendant.

**Issue No. 2:** Whether the 2nd defendant acquired its certificate of title fraudulently and or illegally.

Counsel for the plaintiff submitted that it is fraud to obtain registration to land well 25 knowing of the unregistered interest of another. Counsel further argued that the Dw1 being a co-director of the 2nd defendant company tried to distance himself from any fraudulent dealings, however, it was his testimony that his office premises were opposite the suit premises across the road hence the 2nd defendant cannot claim ignorance of the plaintiff's occupancy of the suit land.

5 Counsel for the plaintiff further argued that by failing to making inquiries into the occupancy of the suit land before purchase, the 2nd defendant avoided the truth which is proof of fraud.

Secondly, counsel for the plaintiff submitted that the 2nd defendant faulted the procedure in applying for a lease by not publishing an advertisement of the property 10 in the newspaper for 21 days as required under Section 23(2) of the Land Regulations and the Public Procurement and Disposal of Public Assets Act, 2003 hence the defendants flouted all these procedures. Counsel cited several authorities to support his submissions including *Fredrick Zaabwe v. Orient Bank & anor SCCA No. 4 of 2006, Makula International v. Cardinal Nsubuga (1982) HCB 11, Kampala* 15 *Bottlers Ltd v. Damaniko Ltd SCCA No. 22 of 1992, Sajjaka Nalima v. Rebecca*

*Musoke Court of Appeal Civil Appeal No. 2 of 1985* among others.

On the other hand, counsel for 1st defendant submitted that the 1st defendant followed all the necessary procedures in allocating the suit land to the 2nd defendant. Counsel further submitted that the area land committee explicitly recommended the 2nd 20 defendant for allocation of the suit land after following due process.

Counsel for the 1st defendant argued that it is standard procedure for the area land committee to advertise available land parcels before making recommendations and sometimes conducts hearings, a process that the 1st defendant is not part or privy to. Counsel argued that if there were any flaws in the process, the same cannot be

attributed to the 1st 25 defendant.

In further reply, counsel for the 2nd defendant submitted that the 2nd defendant denies any allegations of fraud presented by the plaintiff as evidence shows that at the time the 2nd defendant applied for allocation of the suit land, the former lessees' term had been terminated. Counsel further submitted that prior to purchase, the 2nd defendant


5 conducted a such and all the necessary due diligence in respect of the suit land and discovered that there was no subsisting legal interest on the suit land and as such the same was available for leasing. In conclusion, counsel for the 2nd defendant submitted that the plaintiff was neither a sitting tenant of the suit property nor did she have any proprietary interest in the same before the suit land was allocated to the 2nd 10 defendant.

## *Determination*

The plaintiff claims that the 2nd defendant fraudulently acquired the suit land with the aid of the 1st defendant with the aim to extinguish the plaintiff's equitable interest in the suit land.

- 15 It should be noted that unlike in other civil matters where the standard of proof is on a balance of probabilities, in fraud civil cases, the standard is slightly higher as has been decided in a number of cases. In the cases of *Sebuliba v. Cooperative bank Limited [1987] HCB 130 and Kampala Bottlers Ltd v. Damanico (U) Ltd, SCCA No.22 of 1992*, the Supreme Court noted that; - 20 **"***Fraud must be strictly proved, the burden being heavier than one on balance of probabilities generally applied in civil matters***. It was further held that;** *'The party must prove that the fraud was attributed to the transferee. It must be attributable either directly or by necessary implication, that is; the transferee must be guilty of some fraudulent* 25 *act or must have known of such act by somebody else and taken advantage of such act***".**

In the case of *Kampala Bottlers Ltd v. Damanico (U) Ltd* **(ibid),** Wambuzi CJ (as he then was) defined the term **'fraud'** as follows,

"It is well established in law that fraud means actual fraud or some act of 30 dishonesty.


## 5 *Fraud was also defined in Fredrick Zaabwe v. Orient Bank & Others SCCA N. 4 of 2006* to *mean,*

*"The intentional perversion of the truth by a person for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or her or to surrender a legal right. It is a false* 10 *representation of a matter of fact whether by words or by conduct, by false or misleading allegations or concealment of that which deceives and it is intended to deceive another so that he or she shall act upon it to his or her legal injury".*

In *Yakobo M N Senkungu& 4 ors v. Cresensio Mukasa SCCA No. 17 of 2014***,** the 15 Supreme Court was of the view that the argument that fraud as appears in the Registration of Titles Act meant actual fraud which is a narrower argument, so court expanded the same following the findings of the court in *Husky International Electronics Inc v. Ritz No. 15-145 of 2016 [578 US 356 (2016)],* where it held, "the term 'actual' fraud encompasses fraudulent conveyance schemes, even when those 20 schemes so not involve false representation". Transfer of title without parting with possession was equally equated to fraud.

In the instant case, it is an agreed fact that the suit land comprised in Leasehold Register Volume 4527 Folio 2 Plot 25 Clement Hill road is currently registered in the 2nd defendant's names. According to **Section 59 of the Registration of Titles**

25 **Act (Cap 240 revised laws of Uganda),** the production a certificate of title is sufficient proof of ownership save for when the cases presented in **Section 160 of Registration of Titles Act** (previously **Section 176)** apply. This section provides as follows,

## *"No action of ejectment or other action for the recovery of any land* 30 *shall lie or be sustained against the person registered as proprietor under this Act, except in any of the following cases –*

 # 5 *(c) the case of a person deprived of any land by fraud as against the person registered as proprietor of that land through fraud or as against a person deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud;…*

# 10 In the case of *Lagen Majorie v. James Okot Okumu (supra***)***,* Justice Mubiru noted that;

"*A title may be vitiated by fraud, error or illegality manifesting itself at any stage of the whole process leading to and including the final registration and issuance of title. Illegality in the transaction voids the* 15 *title irrespective of the fact that the transferee may not be at fault.*

#### His Lordship further stated that:

i*n seeking cancellation of title on account of fraud in the transaction, the alleged fraud must be attributable to the transferee. It must be brought home to the person whose registered title is impeached or to* 20 *his or her agents".*

In the instant case, it has already been established in issue no. 1 that the plaintiff does not have any proprietary interest in the suit land. This notwithstanding, I shall proceed to determine whether the 2nd defendant lawfully acquired the suit land.

Counsel for the plaintiff submitted that the 2nd defendant did not follow the right 25 procedure of acquiring the suit land particularly when it came to placing an advertisement in the newspaper of wide circulation so as to attract bids from interested parties who were interested in the allocation of the suit land which was former public land contrary to the laws of Uganda.

I have observed counsel for the plaintiff addressed this court on the Public Procurement and Disposal of Public Assets Act 2003 in regards to the 2nd 30 defendant flouting the process of disposal of the suit land which was former public land. However, in this case the most applicable law is **Regulation 23 of the Land**


- 5 **Regulations** which provides for the procedure in connection with allocation of land by a board or the commission. It stipulates that; - *1) A person may apply to a board or the commission to be allocated land-* - *a) In the case of a board, land in the district which is not owned by anybody;* - *…* 10 *2) On receipt of an application referred to in sub-regulation (1), the board or the commission may-* - *a) Advertise the application by giving notice of at least 21 days in a newspaper with wide circulation in the district and by such other means as are likely to draw the matter to attention of persons likely to be affected by the* 15 *application within the district.* - *b) Invite any person to comment on or object to the application, giving reasons for any comment or objection;* - *c) Determine after taking into account any comments …* - *3) A board or commission may dispose of land held by it by auction, tender or*

20 *direct offer".*(**emphasis on the underlined)**

In regards to advertisement, Regulation 23(2)(a) supra, the operative word is **'may'** which connotes to optional, possibility or probability meaning that one may dispense with doing an act as opposed to **shall** which connotes to mandatory or compulsory action. In the case of *Foundation for Human Rights Initiative v. Attorney Genial,*

- 25 *Supreme Court Constitutional Appeal No. 3 of 2009*, it was stated that the word may is not mandatory but a permissive word although it may acquire mandatory meaning from the context in which it is used. The Supreme Court further stated that the use of the word "may" prima-facie conveys that the authority which has power to do such an act has an option to do it or not to do it. See also; *Oxfordshire County* - 30 *Council v. Oxford City Council [2004] All ER 181.* Therefore, it is my interpretation that the advertisement of an application is optional depending on the circumstances of each case.

I have also observed under Regulation 23(3) supra, that the board in this case the 1st defendant is empowered by law to dispose of land either by tender, auction or direct

offer. Therefore, since the 2nd 5 defendant expressed interest in the suit land by applying for allocation, the 1st defendant was mandated to offer the suit land to the 2 nd defendant by direct offer (DExh.15) long after the former lessees had expressed disinterest in renewal of their lease (DExh.13) hence there was no legal requirement to first auctioning or calling tenders. As earlier resolved, the plaintiff sat on her own 10 rights by not applying for allocation of the suit land.

In addition, it is evident that the area land committee of Kampala Central Division under minute K. C. D. A. L. C Min 01/10/2010 expressed no objection at all to the allocation of the suit land to the 2nd defendant. Land committees play a vital role in the disposal of land by district land boards or commission. These bodies are 15 established by **Section 65 of the Land Act Cap 236 [Revised Laws of Uganda,**

## **2023).**

In this case, I am not convinced that the 2nd defendant flouted any procedures to cause the allocation of the suit land to the 2nd defendant. Secondly, I find that the plaintiff has failed to discharge her burden in proving that the defendants

20 fraudulently dealt in the land with an intention to dispense with the plaintiff's interest in the suit land since there is no interest to begin with. This issue is resolved in the negative.

**Issues No 3:** Whether the plaintiff was lawfully evicted by the 2nd defendant and development demolished pursuant to a court order

Counsel for the plaintiff submitted that it is not in doubt that the 2nd 25 defendant used a decree and warrant of vacant possession to evict the plaintiff from the suit land property and also to have the hotel demolished with a demolition order with an intention to defeat the plaintiff's claim to the suit land. Counsel further argued that despite claim that the 2nd defendant had an order of court to effect the eviction and


- 5 demolition, the same was not adduced in court. In addition, counsel for the plaintiff further submitted that the No Notice to Show Cause was served on the plaintiff before the eviction and demolition of the plaintiff's property was done. In conclusion, counsel for the plaintiff submitted the aforementioned process was illegal and great loss was occasioned to the plaintiff. - 10 On the other hand, counsel for the defendant submitted that the plaintiff was lawfully evicted from the suit land pursuant to a court order. Counsel submitted that it is trite that a decree or order of court of competent jurisdiction is valid until set aside on appeal and as such the same must be obeyed. In support of his argument counsel cited the case of *Papada Holdings Ltd & anor v. Christopher Kisembo & anor*

15 *HCMA No. 497 of 2021.*

### *Determination*

The Decree (PExh.16) in question arose from Chief Magistrate of Mengo Civil Suit No. 486 of 2015, which was a Summary Suit **(PExh.15)** for recovery of a liquidated sum to a tune of Ug. Shs. 40,000,000 (Uganda Shillings forty million) arising from rental arrears arising from a tenancy agreement between the 2nd 20 defendant and the

- plaintiff's late husband Renne Richardson. The High Court Registrar His Worship Tom Chemutai (as he then was) (PExh.17) issued a warrant to court bailiff Kirunda Moses T/a SpearLink Auctioneers and Court Bailiffs to give vacant possession of premises comprised in LRV 4527 folio 2 Plot 25 land at Clement Hill road Kampala - to the 2nd 25 defendant by way of eviction. However, I have observed that only an eviction order was made and no demolition order was made.

It is trite that demolition of property would not commence without the issuance of a valid court order issued by a competent court. PExh.17 was clear, execution was by way of eviction only. Had the Judicial officer intended to have the hotel demolished,


5 an express demolition order would have equally been made and the same was not the case.

In light of these facts and evidence, I am satisfied that there was no order issued to demolish Clement Hill Hotel as expounded by Kampala Capital City Authority (PExh.19). Therefore, in the absence of any demolition order, I am convinced that

10 the plaintiff was lawfully evicted, however, Clement Hill Hotel was illegally demolished. This issue is partially resolved in the affirmative.

**Issue No.4:** Whether the plaintiff suffered any loss due to the actions of the 2nd defendant

In regards to loss suffered by the plaintiff, it is counsel for the plaintiff's submission

15 that the plaintiff lost property valued at Ug. Shs. 232,157,900 (Uganda shillings two hundred and thirty-two million one hundred fifty-seven thousand shillings only) as well as a building valued to a tune of Ug. Shs. 354,900,000 (Uganda shillings three hundred fifty-four million nine hundred thousand). According to paragraph 22 of her witness statement, the plaintiff contended that prior to the demolition of the hotel, 20 she had a monthly income of USD 536 (five hundred and thirty-six United States of

#### *Determination,*

America Dollars).

The plaintiff adduced a tabulated form of all the destroyed property during the demolition (PExh.26). It is not a contested fact that the hotel was demolished as was 25 observed by court during the locus in quo visit. It observed the suit land is currently being used as a parking lot and there is no hotel in sight. According to paragraph 2 of Pw2(Mukuru Yoweri Mutabazi)' witness statement, he stated that he worked as a Manager for the plaintiff's hotel for about seven years until the eviction in 2015. In paragraph 12, Pw2 contended that an inventory of all the hotel property had just


5 been done at the end of 2015 and that is the list that was reproduced in court as PExh.26.

During cross examination, Pw2 testified that he merely generated the list but the valuation of the destroyed property was done by a valuer. However, the name of the said valuer was never mentioned and neither was the said valuer produced in court

10 as a witness. Therefore, the plaintiff has failed to discharge her evidential burden to prove the losses occasioned from the demolition of the hotel totally a tune of Ug. Shs. 587,057,900 (Uganda shillings five hundred eighty-seven million fifty-seven thousand nine hundred shillings).

**Issue No.5:** What remedies are available to the parties.

15 This issue has already been partially determined. The plaintiff sought several remedies according to her plaint among others declaratory orders, special damages to a tune of Ug. Shs 705,357,900 (Uganda shillings seven hundred five million three hundred fifty-seven thousand nine hundred shillings), general damages, mesne profits and costs of this suit.

### 20 **Special damages**

It is trite law that special damages must not only be specifically pleaded but they must also be proved **(***see Borham Carter v. Hyde Park Hotel [1948] 64 TLR)***.** In the instant case, the plaintiff prayed for special damages to a tune of Ug. Shs 705,357,900 (Uganda shillings seven hundred five million three hundred fifty-seven 25 thousand nine hundred shillings).

The plaintiff averred that she used to earn a monthly income of USD 536 (five hundred and thirty-six United States of America Dollars) from the hotel before its demolition. However, the plaintiff did not attach any documentation or proof of the lost earnings.

5 In the case of *Attorney General v. Lutaaya Supreme Court Civil Appeal No. 16 of 2007, the Supreme Court held that special damages may only be awarded if they have been specifically pleaded and strictly proved by the plaintiff.*

Therefore, without proof of the above-mentioned lost earnings, I cannot possibly grant an order for special damages. This prayer fails.

### 10 **General damages**

The plaintiff sought general damages. The award of general damages is premised on the doctrine of *'restitutio in integrum'* which means that the aggrieved party has to be restored as nearly as possible to a position he or she would have been in had the injury complained of not occurred. *(See Amazima (U) Ltd v. Mahdi (HCCS NO.*

15 *453 of 2016).*

In the case of *Luzinda v. Ssekamatte & 3 Ors (Civil suit -2017/366 [2020] UGHCCD 20 (13 March 2020***),** *this court held that as far as damages are concerned, it is trite law that general damages be awarded in the discretion of court. Damages are awarded to compensate the aggrieved, fairly for the inconveniences*

20 *accrued because of the actions of the defendant. It is the duty of the claimant to plead and prove that there were damages, losses or injuries suffered as a result of the defendant's actions*.

It has already been resolved that the plaintiff does not have any proprietary interest in the suit land. Therefore, the plaintiff is not entitled to general damages as pleaded.

25 **Mesne profits**

**Section 2(m) of the Civil Procedure Act,** defined mesne profits as profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received from it, together with interest on those profits, but


5 shall not include profits due to improvements made by the person in wrongful possession.

It has already been resolved that the plaintiff does not have any claim of right over the suit land. In the premises this prayer is denied.

**Costs**

10 **Section 27(2) of the Civil Procedure Act Cap 71** provides that costs shall be at the discretion of the court and shall follow the event unless for good reasons court directs otherwise. It is trite that cost "shall follow the event"; which means that the successful party, shall be entitled to costs.

In the instant case, the suit is dismissed as against the plaintiff, therefore, this prayer is denied. Since the 2nd 15 defendant illegally demolished the plaintiff's structure on the suit land, the 2nd defendant is not entitled to the costs of the suit.

In summation, I order as follows;

- *1. The suit is dismissed.* - *2. The allocation of the suit land currently comprised in Leasehold Register Volume 4527 Folio 2 Plot 25 Clement Hill road to the 2nd* 20 *defendant by the 1 st defendant was lawful.* - *3. The 2nd defendant is the lawful registered proprietor of land currently comprised in Leasehold Register Volume 4527 Folio 2 Plot 25 Clement Hill road.* - 25 *4. Each party shall bear its own costs.*

**I SO ORDER**.


5 Judgment delivered via ECCMIS this **25th** day of **June** 2025.

**Immaculate Busingye Byaruhanga Judge**