[1996] UGHCLD 2

## THE REPUBLIC OF UGANDA

## IN THE HIGH\*COURT OF UGANDA AT KAMPALA.

## CIVIL SUIT 532/92

| COFFEE<br>BUSIRO | FARMERS<br>& | DEALERS<br>LTD | | PLAINTIFF | | |--------------------|--------------|----------------|-----|------------|--| | | | VERSUS | | | | | TOM<br>KAYONGO | | | 1ST | DEFENDANT | | | KAYONGO<br>DEBORAH | | | 2ND | DEFENDANT* | | | UCARIDE<br>LTD. | | | 3RD | DEFENDANT | |

BEFORE THE HONOURABLE LADY JUSTICE C. K. BYAMUGISHA

## JUDGEMENT

The plaintiff a limited liability company filed these proceedings *O* against the three defendants craving for the following reliefs:-

- (1) the effect that the plaintiff is the lawful proprietor of the suit land; a declaration to - (2) servants; Eviction order against the defendants or their agents or - (3) Mesne profits at shs 500,000/= per month since the commission of the trespass; - (4) date of judgment till payment in full. Interest at 50% per annum on the principal sum from the

$(5)$ Any other reliefs and costs of the action

A resume of the factual situation constituting the plaintiff's claim against the three defendants appear to be as follows:-

The plaintiff company is the registered lessee of the suit property comprised in plot 128 Block 176 situated at Tebalowoza Mukono District. The lease was registered on the 29th day of November 1990 as Instrument No. MKO 49550. The lease is for a period of 49 years and the mailo interest is owned by George William Muwonge (P. W.1). The suit property had at one time been the subject of a 99 year lease which commenced on the 18th day $\iota$ of August 1954 in favour of a company known as Farms and Plantations Ltd. The owners of the company are alleged to have been Ugandans of Asians extraction. In 1972, the owners were expelled from Uganda by the Government of the day and the property was expropriated by the Government and vested in the Departed Asian Custodian Board as the management agency. It is claimed the lessee did not pay ground rent and the lessor Muwonge $(P. W.1)$ successfully applied for the determination of the lease and the noting of the re-entry. This was effected by the Registrar of Titles on or about the 14th August 1990. $20$

In the meantime, the suit property had been allocated to the defendant by the Departed Asians Property Custodian Board in 1989 and when the plaintiff company demanded vacant possession they resisted claiming that they were tenants of the Custodian Board. The plaintiff first filed a suit in the Chief Magistrate's Court

**J** at I-lukono and obtained an exparte decree. This was set aside at served with court process. After this plaintiff withdrew the **J** suit presumably under 0.22 of the Civil Procedure Rules which permits ^a plaintiff to withdraw its claim wholly or partly **^J** against ^a defendant This suit was then **J** instituted seeking the reliefs already referred to. on payment of costs. the defendant claiming that they were never the instance of

**J** The following were the agreed issues:-

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- (1) whether the re-entry by George William Muwonge was **J** fraudulent or not. **Io** - **J** (2) whether the plaintiff acquired the lease as purchaser for valuable consideration. a bonafide - (3) whether the defendants are occupying the land legally; - (4) whether the defendants are entitled to the reliefs in the counter-claim.

**1** ^I shall deal with the issues as framed beginning with the first re-entry by Muwonge was fraudulent. paragraphs ⁸ and ⁹ of the defendant's joint written statement of defence. The paragraph in question read as follows:- This issue was based on ^-is-s-u-e-s—a-s

fl "⁸ In answer to paragraph ⁵ of the plaint, the defendants

aver that the 99 year lease alleged therein has never been terminated as alleged in paragraph ⁵ or at all; the defendants will aver that the said lease continues to date and will put the plaintiff to strict proof of how the same came to be allegedly terminated and how, when and in what circumstances the alleged re-entry was effected.

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**"⁹** In further answer to paragraph ⁵ of the plaint, the any re-entry was entered in the Register Book (which is denied) then the same was entered the said purported re-entry was and is null and void and of no effect in law." on the basis of fraudulent misrepresentation on the part of -j *Q* the plaintiff, its associates servants/agents/employee and defendants aver that if

First, it is a legal requirement that a party who alleges fraud must give particulars of fraud being relied upon. This is in line with the provisions of 0.6 rule ² of the Civil Procedure Rules which reads thus:-

In all cases in which the party pleading relies on any **¹** misrepresentation ,fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary, such particulars with dates shall be stated in the pleadings."

The written statement of defence filed by the defendants *r\* contravened the provisions of the above rule. The question is

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whether this is fatal to the case. The plaintiff did not at any one time raise any complaints about failure by the defendants to give particulars of fraud. This may have been largely due to the fact that the plaintiff did not effect the re-entry, since reentry can only be effected by a lessor. Allegations of fraud in land transactions must be attributable to the transferee either directly or by necessary implications. I think the law is settled as set out in various authorities that particulars of fraud must be pleaded and failure to plead them is fatal to the case especially where fraud is of the essence: Okello Okello $v$ . $10$ East Africa Examination Board C. A. No. 12/87 (unreported Stephen Lubega v. Barclays Bank (U) Ltd C. A. No.2/92 (unreported)

However, in the instant case fraud does not touch on the plaintiff's registration as proprietor of the lease. It concerns the re-entry or the cancellation of the leasehold interest in favour of Farm and Plantations Ltd. The party who effected the re-entry was never sued, there is no testimony before court to suggest that the plaintiff is an agent of the Muwonge. However, since both counsel made submissions of this issue, I shall proceed to determine it bearing in mind the provisions of article $\mathcal{O} \mathcal{O}$ $\frac{126}{(2)(e)}$ of the constitution which states that substantive administered without undue justice shall $\quad\texttt{be}\quad$ regards to technicalities. I am also persuaded by the judgment in the case of Misango v. Musigire & others (1966)EA 390 in which Sir Udo Udoma as he then was cited the speech of Hetcher Moulton L. J. in the case of Dyson v. Attorney General (1911) I. K. B to the errect that our judicial system should never permit a party to be

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"driven from the judgment seal --without the court heard except in cases where the cause of action was obviously and almost incontestably bad" considering his right to be

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^I shall now consider the submissions of both counsel. Mr. Elue who represented the plaintiff in his brief remarks submitted that It was his case that Farms and Plantations Ltd had not paid rent since 1962 Custodian Board also did not pay rent. testimony of the lessor Muwonge (P. W.1) to that effect. Counsel also referred to the provisions of sections ¹ and 2 of the Expropriated Properties Act properties which had been expropriated. He pointed out that the provisions of these two sections were judiciary considered in the Attorney General Civil Suit No. 834/89 deprive rightful registered proprietors of ownership or their ^&gt; rights in such properties. and when the lease was expropriated, the Departed Asian Property He was referring to the ^| Q retrieve properties which had falle^ in wrong hands and not to the answer to issue No.l must be in the positive. in which the court said that the provisions were intended to case of Bidandi Sali v. and the effect they had on

Mr. Mugenyi who represented the defendant contended that there was no proper re-entry by the lessor his occupation of the same. He stated that the law on re-entry is The section clients as allocatees of the \_suit property were in\_ physical . explicitly stated in Section 113 of the R. T. A. On the otherhand

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says:-

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"In the case of a lease or sublease of land under this Act, if it is proved to the satisfaction of the Registrar that the lessor or sub-lessor or his transferee has re-entered the lease or sub-lease or under the power of paragraph (b) of section 102 of this Act where the lessee or sub-lessee has abandoned the leased premises and the lease the transferee has thereupon re-entered upon and occupied the '[ *Q* said premises by himself lessee or sub-lessee, the Registrar may make an entry of the register book the case may be, and the term of sub-leased shall upon such entry being made, determine and may be incumbrance from a certificate but without prejudice of action or case of action which previously has been commenced or has accrued in respect of any breach or non-observance of any covenant expressed in the lease or sub-lease or by law declared to be implied there" upon the premises in strict confirmity with the provision of re-entry contained in removed as an such re-entry in or in the sub-lease lessor or sub-lessor or his Register, as and that or tenants undisturbed by the

Counsel submitted that Mr. Muwonge did not fulfil the conditions spelt out in the above section ror him to have alleged before the Registrar that he had re-entered. He referred me to a decision of this court in the case of Charles Kassaja v. Registrar of Titles Misc. No. 51/93 (unreported) in which re-entry was judiciary considered. In that case, the court said:-

*1* "There was no re-entry within the provisions of section 102(a) and S.113 of the R. T. A. for there was no actual reentry. The R. T. A. and the leases required the lessor to make physical possession of the leased premises to determine the lease. The mere declaration, notice or adverts in the press ■I law does not provide for

Counsel further pointed out that the property remained under the control of the Departed Asian Property Custodian Board which ⁱ protested against the cancelling of the lease and therefore the incumbrance. re-entry should be cancelled and the lease re-instated as an ^j £

After the summary of the submission made from the bar, I must state at once that the suit was filed by a third party who had acquired interest from the lessor after the incumbrance of the former lessee had been successfully removed from the register book. This is not an action seeking relief against forfeiture since the lessee and the Management agency are not complaining. Moreover the law seems to be clear that a lessee cannot maintain lessor who has actually reentered. in otherwords the provisions of section 184(b) of R. T. A. bars an action ejectment on grounds of fraud against lessor. The reason being that he has a superior title. an action of ejectment against a

Registrar of Titles. No evidence was adduced. ^I take it that he must have been satisfied that the provisions of the law were It is not clear what declaration the lessor made before the

complied with before cancelling the incumbrance. Once the lease has been determined the person who remains in possession becomes • a trespasser. certificate of title which is untainted and it is presumed to be the absolute owner of the property until the contrary is proved. This is not a case in which the court can go beyond the fact of registration. Muwonge's manner of re-entry has no effect on the plaintiff's title unless there is fraud. It goes without saying that the plaintiff acquired its interest as bonafide purchaser for valuable consideration under section ¹⁸⁹ of the R. T. A. ^a bonafide **IC** purchaser for valuable consideration cannot be deprived of his become the registered proprietor on the ground that: The plaintiff was issued with a interest in the land to which he has

"the proprietor through or under whom the claim was registered as proprietor through fraud or derived from or through a person registered as proprietor through fraud or error. ^u error or has

A bonafide purchaser obtains a good title even if he/she purchases from a proprietor who previously obtained registration on the defendant to prove that there was fraud on the part of the plaintiff. Fraud must b^e strictly ..proved. There was no proof The plaintiff's title is protected. **I** entry could be said not to have been proper. ^f any fraur] nn This is one of those cases in which the nF the r>l ^a ⁱ ⁿ ^b ff mron if Mi it.tnn co *'* c; vo\_ by fraud. If ^a bonafide purchaser is guilty of fraud he/she will ^0 ^L cease to be innocent and therefore lose protection. The onus is

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register should be treated as a notice to the whole world that ! the person whose names appear therein is the lawful owner unless it can be proved that the registration was secured by fraud.

The third issue is whether the defendant occupation of the suit properly is unlawful or amounts to trespass. Counsel for the defendants referred to many authorities in his submission to show that their occupation amount to trespass. He also relied on the testimony of Olija (D. W.2) and Kayondo that the to the defendants Custodian board handed the property back to the former owners in permission of the former owner. does not and that when suit property was allocated 1993 the defendants remained in occupation with the express

Counsel for the plaintiff on the otherhand maintained that the defendants were given notice to quit the suit premises but chose to ignore it. plaintiff in mesne profits. Their continued occupation of the property^ Counsel submitted, amounts to trespass and they are liable to the

^I do agree with counsel for the defendants that trespass to land is unlawful interference with another persons's land. In order at the time of filing the action. Possession in its primary sense in the visible possibility of exercising physical control coupled with the intention of doing so either against all the world or against all except perhaps certain people. to bring an action in trespass to land, the person bringing the^j action must be in actual possession or entitled to its possession

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In the instant case, the plaintiff is the registered proprietor and ⁱ ^t is pre sumed ^t o be the absolute ^t he con^t ^r ary ⁱ ^s proved. ^I ^t ⁱ ^s therefore entitled to the possession of ^t he proper ^t y against all those who ^c anno ^t show ^a better title that it lease the basis of the defendant occupation was determined by ^t he re-entry. The plaintiff was entitled to possession from the 29th November 1990. when ⁱ ^t wa ^s registered ^a^s propr ⁱ ^e ^t or. The defendants continued occupation of the sui ^t proper^t y after ^the determination of ^t he lease amoun ^t ^s to trespass in my view. owner until

**|0** Lastly ^I shall dea ¹ with ^t he issue of reliefs. In view of my **I** findings the plaintiff is entitled to the declaration that ⁱ ^t ⁱ ^s the registered proprietor of ^t he suit proper ^t ^y and on eviction order as pr ayed.

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the plaintiff adduced evidence to show **a** that the plaintiff Company was losing ^t he sum of Shs 500,000/ per month in anticipated income. The pro ^f ⁱ ^t ^s is defined ⁱ ⁿ Section ² of the Civil Procedure Ac ^t as meaning **¹** to be profits which the person in wrongful possession of property actually received or might with ordinary diligence here received ^r ^t here ^f rom together with interest on such pro ^f ⁱ ^t^s due **toXC** ⁱ mpr ovemen ^t ^s made by ^t he person ⁱ ⁿ wrong fu¹ possession. **]** Therefore wrongful possession is the very essence of ^a claim for **¹** and ⁱ ^t ⁱ ^s awardable against **^a** tenant who remains in possession after his **1** end . In the instant case, the def endan ^t \* ^s interes ^t **in the land** interes ^t came to an end in September 1990 when the landlord determined the expression me sne mesne profits to an As regards mesne profit, in the property has come

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lease. who occupation of the land became a trespasser. The defendants acts of trespass as far as the plaintiff's claim is concerned dates back in November 1990. From that date up to the present is approximately ^a period of ⁶⁰ months. The figure of shs by any other\_.evidence to the contrary. Using 60 as a multiplier, this will give a figure of shs. 30,000,000/=. This amount will be reduced to take into account the uncertainties and imponderables of this world. final figure will be shs. 25,000,000/=. The 500,000/= was not contradicted At that point in time any person continued in

whether the defendants are entitled to the reliefs in the counter-claim. The claim was for a sum of shs. 20,000,000 as special damages as contained in paragraph 21 of the ^written statement of defence and counter-claim. The rule has long been established that special damages must be strictly ¹ proved at the trial by the person claiming them if they are to No attempt was made by the defendants to prove these damages and therefore one will be awarded. I - (be awarded. The last issue is

Judgement will be entered in favour of the plaintiff against the defendants jointly and severally and the following orders made: **ar<h?** **i**

- at ⁱ on that the plaintiff is the registered proprietor of the suit premises; *r\\*~'* ¹ p - (2) Eviction order

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(3) 25,000,000/= (twenty five million Mesne profits of shs

<pre>shillings)</pre>

- Interest of at the rate of 50% per annum from the date of $\frac{1}{2}$ $(4)$ <pre>judgment till payment in full;</pre> - (5) Costs of the suit to the plaintiff.

$C. K.$ BYAMUGISHA (MRS)

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## **JUDGE**

$31/05/96$ .