[1991] UGHCCD 4

Hon. Mr. Justice J. W. M. Tsekooko i raisfe

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA HIGH COURT CIVIL SUIT No. 84/91

EDDIE RODRIGUES :::::::::::::::::::::: PLAINTIFF. **VERSUS**

ATTORNEY GENERAL ::::::::::::::::::::::: DEFENDANT. BEFORE: HONOURABLE MR. JUSTICE A. N. KAROKORA. JUDGMENT:

The plaintiff in this suit filed this action against the Attorney General in his representative capacity under Section 11 of the Government Proceedings Act (Cap. 69), claiming for an order of :

- (a) declaration that the plaintiff is entitled to the transfer of the property comprised in LHR Volume 589 Folio 10 Plot 17 Princess Anne Drive Bugolobi. - (b) An order directing the commissioner inland Revenue (Ministry of Finance) to release to the plaintiff within 14 days from the date of judgment the Certificate of Title transfer and any other documents pertaining to the transfer of the land held by the commissioner Inland to enable the Commissioner Land Registration (Ministry of Lands & Surveys) to complete the transfer of the property into the name of the plaintiff.

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(c) General damages for loss of use of the title and inconvenience as avered in paragraph 5 hereof.

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$(d)$ Costs of the suit.

$(e)$ Interest at 51% pa on the decretal sum from the date of filing the suit till full payment. Facts constituting the cause of action are as follows:

The plaintiff bought land comprised in LHR Vol. 589 Folio 10 Plot 17 Princess Anne Drive Bugolobi from Her Majesty's Government of England. He applied in June, 1989 for the transfer and registration of the property into his names and for the said purpose the plaintiff paid Uganda Shs. $1,850,000/=$ on account of stamp duty to the Inland Revenue Department Ministry of Finance. After all the formalities were completed, the plaintiff presented the transfer in the land office for Registration but the same was rejected by the Defendant's servant to wit the commissioner for lands on the allegations that the receipt annexture B and the stamps emb@ssed on the transfer were forgeries.

However, after investigations were carried out it was proved that the bank draft for Shs. 1,850,000/= for stamp duty was duly received by the Inland Revenue Department Kampala, After this, the Permanent Secretary of Lands & Surveys requested the defendant's servant the commissioner for land Registration to effect the Registration of the Transfer but this could not be done ....

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as the commissioner of Inland Revenue Department had refused to release the transfer documents.

The matter was thereafter referred to IGG for investigation, who after investigation directed that the commissioner of Inland Revenue to release documents for purpose of processing plaintiff's transfer of land and Registration as the plaintiff had not been involved in the money paid for stamp duty which had been paid in Kampala but had been traced in Jinja Inland Revenue having already been withdrawn by an employee of defendant but who was order to refund it.

So as of today, the commissioner of Inland Revenue has failed or neglected to release relevant document for purpose of processing plaintiff's transfer and Registration of the said land.

By reason of the matters complained of the plaintiff has suffered loss of use of his title deed and has lost financial facilities from prospective lenders due to lack of security for the credit and the plaintiff has thereby suffered great inconvenience at the hands of the defendant's servants and he claims general damages from the defendant.

At the hearing, the defendant who had entered appearance, but failed to file defence, failed to turn up for hearing, despite the fact that the defendant had been duly served. . . . . . . . . /4

Affidavit of service was duly filed on the court file. Therefore, the defendant having entered appearance, Rule 6 of Civil Procedure Govt Proceedings) Rules Cap 69 would not apply. Sec also HCCS 40/87 Yefusa Wabusa Vs. Attorney General. I am raising this issue because I have had application by Attorney General seeking refuge L Rules 6 of Rules made under Cap. 69. The parent Act, Government Proceedings Act (Cap. 69) specifically states in section 8 that all Civil Proceedings by or against the Government in the High Court shall be instituted and proceed/with in accordance with rules of Court and not otherwise.

Therefore, pursuant to the above, I permitted the plaintiff to proceed ex-parts under order 17 (1) (a) of the Civil Procedure Rules (C. PR.).

In his testimony Mr. Eddie Rodrigues stated that in May, 1989 he purchased a house from Her Majesty's Govt from the British High Commissioner. The house is on plot 17 Princess Anne Bugolobi Drive. He paid Shs. 25,316,955/=. He produced transfer of land into his name as Exh. P1 by Her Majesty's Government on consideration of Shs. 25,366,955/=. The transfer was presented to Revenue Office. He thereafter paid Shs. 1,850,000/= stamp duty by Bank draft Not Negotiable and A/C payee only payable to Uganda Administration.

Later, a man called Bukenya told him that the money had not been received.

$-5 -$

However, after a thorough investigation Ag. Director, Banks supervision of Bank of Uganda, it was discovered that the draft had been received and credited to the beneficiary -Uganda Administration, but despite this, the commissioner of Inland Revenue refused to release his original documents. The Permanent Secretary (PS) of Lands & Surveys advised the plaintiff to contact the IGG. After the IGG had studied the case, he advised the commissioner of Inland Revenue to hand the relevant documents for the plaintiff to process the transfer and registration of his Title deeds, but the Commissioner of Inland Revenue, Mr. Bukenya refused. He therefore decided to come to court for remedy seeking several reliefs which are already enumerated herein.

He stated that he bought it in May, 1989 and wanted to rent it. The British Government had given him the keys and the possession of the house. The British Embassy were interested in renting it from him. He had dealt with Mr. Kith Taylor and they were willing to pay \$ 1200 p.m. rent. This was in June, 1989. They did not take the house, because he did not have documents of ownership. He stated that they had verbally agreed on those terms. He stated that the house was still unoccupied. He further stated that since June, 1989, there had been inquiries about occupying his house.

$... - 6.$

One inquiry came from the American Embassy and from Danida. He stated all these were verbal inquiries. He stated that he was asking \$ 2500 p.m, but they had agreed to pay \$ 2000/= P. M, but they could not take it over as he had no legal documents of being the owner of the house. He stated if he had received \$ 2000 P. M since June, 1989, these would be 24 months. So by now he would have earned $$48,000/$ = which would come to Shs. 50,000,000/ He stated that this would earn him some interest.

He therefore was asking for general damages for the illegal detention of his documents which resulted in the chat above loss. He contended/with the title deed, he would have raised a loan to carry on further development. He was asking for interest of 51% pa on the General Damages that he may be awarded.

At the close of the evidence by the plaintiff which which evidence was uncontroverted, Mr. Kayondo addressed me in the above terms and invited me to consider the agony and un necessary inconvenience caused to plaintiff by Mr. Bukenya's stubborness. He invited me to order for relevant documents to be released so that transfer of the land can be effected. He further prayed for the General damages for Shs. $70,000,000/$ = in view of the rental proposed to be offered, ranging from $\&$ 1200 p.m. to \$ 2000 p.m. and considering shortage of accommodation in Kampala.

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Now upon the evidence which was uncontroverted and upon department's failure to file any defence against the plaintiff there is a presumption, according to the decisions in Kanji Duji Vs. Damoder Jinabhai & Co. (1934) 1 EACA 87 and Sengondo Vs. A. G (1972 EA 140 which were cited in HCCS No. 1230/88 Agadi Didi Vs. James Nawekajo ( Unreported). that or constructive admission, / the claim made in the plaint and the story told by the plaintiff in the absence of a defence to contradict/, must be accepted as the truth.

satisfied From the evidence on record, I am/and believe that the plaintiff bought the land in question from Her Majesty's Government L. H. R Vol. 589 Folio 10 plot 17 Princess Anne Drive Bugolobi at Shs. 25,366,953/=

but Registration of title deeds into names of the plaintiff could not be effected as the commissioner of Inland Revenue refused to release original documents -Transfer of land and certificate of Title Deeds on the ground that Bank draft of Shs. 1,850,000/= for stamp duty had been forged. Although investigation revealed that the beneficiary to the draft in question had received the funds and although there was no evidence to connect the plaintiff with the first attempt to defraud the beneficiary of the amount of Shs. $1,850,000/$ =, the Commissioner of Inland Revenue refused to release the relevant documents despite directives from the IGG.

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Transfer of land was effected,

I heard the evidence and heard submission of Mr. Kayondo, Counsel for the plaintiff, and I am left in no doubt that the plaintiff duly bought the/in question and paid stamp duty chargeable. As there is no evidence before me justifying why the Commissioner of Inland Revenue had refused to release the relevant documents to enable the plaintiff to transfer the land into his names and have the same Registered in his names, I am making an order that the land in question belongs to the plaintiff and as such, he is entitled to the transfer of that land in question.

Accordingly, I am ordering the Commissioner of the Inland Revenue (Ministry of Finance) to release to the plaintiff within 21 days from the date of this judgment. the Certificate of Title, transfer and any other relevant documents connected or pertaining to the transfer of the land held by the Commissioner of Inland Revenue to enable the Commissioner of Lands to complete the transfer of the property into the plaintiff's names and Registration of the Title deeds.

As regards prayer for general damages, I must state that although failure to file defence raise presumption or constructive admission of the claim in the plaint, it is also settled that fact/must be produced to show that the plaintiff incurred or must have incurred damage as a result of the defendant's wrong to him. $\cdots \cdots \cdots /9$

So plaintiff must prove that the withholding of the relevant document which made it impossible for him to acquire title deeds of his land made him suffer damage or he was disadvantaged. In order to prove what he lost the plaintiff stated the British Embassy which. had sold the house were willing and had offered to rent it at £ 1200 per month from June, 1989. Then American Embassy and Danida had each offered to rent the house and pay \$ 2000 per month with effect from June, 1989. However, because he had no document to prove his title of ownership no one could rent the house. He therefore claimed he had lost rent for 24 months which would come to \$ 48,000 equivalent of Shs. $50,000,000/=$ .

I must, however, state that whereas the house would not remain un occupied since June, 1989, I hesitate to accept that the British Embassy would orally offer $\pounds$ 1200 per month rent without spelling out these terms in a document or a letter offering to rent the house. Likewise, I would hesitate to believe that American Embassy and Danida would negotiate orally and come to a final figure without reducing their terms in writing or letter form.

Mr. Kayondo, counsel for the plaintiff invited me to believe the witness as being truthful. Well whereas I do believe that he bought the house in question and that the Commissioner of Inland Revenue refused to release all relevant documents connected with Transfer of Land and Registration of his title deed as the owner of the land. I cannot accept the evidence that the British Government who had just sold the house.to plaintiff, .........

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immediately, orally offered to rent the same house at £ 1200 per month. Further, I reject the evidence of plaintiff that the American Embassy and Danida orally offered to rent the same house at \$ 2000 per month in June, 1989. An Embassy of USA or an organisation such as Danida would not, in my considerered view, transact such a business orally to reach the stage of offer and acceptance. I therefore cannot, in view of the above, accept that the plaintiff lost either $£$ 1200 per month from the British Embassy in Kampala or \$ 2000 per month from either USA Embassy or from Danida Offices in Kampala.

However, be that as it may, it would, I think be unfair to to say that if the house had been Registered in his names as his property; it would remain unrented for all these months. With shortages of accommodation, he would have rented it as a result of which, he would have earned substantial income. However, because of the obstinancy of the Commissioner of Inland Revenue to heed to advice from PS of Lands & Surveys and IGG, who had advised him to release the relevant documents so that plaintiff's Certificate of Title should be processed, the plaintiff could not get certificate of Title and as such, he could not rent his house.

As to how much he would have earned as rent, I cannot take his figure as Gospel truth.

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Since he never produced any letters of offers from either British Embassy or USA Embassy or Danida or any estimated rent by a qualified valuer. However, it must be accepted that he substantially lost an income in form of rent since June, 1989. And this loss of an income in form of rent directly flowed from the Defendant's servant's wrongful detention of plaintiff's relevant documents without which his title deed could not be processed. This loss of income must have been reasonably foreseeable by Defendant's servants as likely to occur through the detention of the relevant documents - which detention delayed Registration of plaintiff's Certificate of Title to the land in question.

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Since I do not have an authority to guide me as to the standard rents of houses in Kampala, I would do the best I can by taking the figure of Shs. 500,000/= per month as this is the rent now payable by Government to Ministers or Judges living in their own private houses. : Therefore, since, because of detention of relevant documents, the plaintiff's title deeds could not be processed as a result of which, the plaintiff could not rent his house out, the defendant must pay general damages for loss of rent for 24 months at the rate of Shs. 500,000/= which will amount to Shs. $12,000,000/=$ .

Therefore all in all, judgment is given for plaintiff. Plaintiff is entitled to the transfer of his property in question with immediate effect.

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The Commissioner of Inland Revenue is ordered to release to the plaintiff all relevant documents, Certificate of title, transfer and etc. within 21 days from date of judgment to enable transfer, and Registration of Certificate of Title to the land to plaintiff's names. Defendant is ordered to pay Ug. Shs. $12,000,000/$ = general damages for loss of use of the house. This amount is bound to increase, depending on how soon the amount will be paid.

$12$

Defendant must pay costs of this suit and must pay 12% interest from date of judgment till full payment.

A. N. KAROKORA,

J U D G E $26/6/91.$

Registrar directed to summon parties and read judgment.

A. N. KAROKORA, $J$ $U$ $D$ $G$ $E$ . $26/6/91$ .

Parties absent. $24/7/91:$

Court:

No proof of service of Notice of Judgment. Fresh notice to issue on $30/7/91$ .

Sgd. G. K. KAGODA,

ASS. REGISTRAR.

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Bwanika for Kayondo & Co. for plaintiff. Attorney General un represented though served.

Judgment fead and explained.

Sgd. G. K. KAGODA, ASS. REGISTRAR.

ANK/zk.