[2018] UGSC 80

### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KOLOLO

**Coram** :( Katureebe CJ, Arach-Amoko, Mwangusya, Opio-Aweri, Mwondha JJ. S. C)

### CIVIL APPEAL NO.2 OF 2015

#### **BETWEEN**

# MABALE GROWERS TEA FACTORY LTD........... APPELLANT **VERSUS**

**NOORALI MOHAMED ..... .............. RESPONDENT**

(Appeal from the Judgment of the Court of Appeal of Uganda (S. B. K. Kavuma, A. S. Nshimye and Remmy Kasule JJA) at Kampala, dated 7^th November 2002 in Civil Appeal No. 100 of 2010).

## JUDGMENT OF ELDAD MWANGUSYA, JSC

The late Abeli Balya owned a piece of freehold land comprised in FHRV 76 Folio 13 measuring 320 acres situated in the then Mwenge County, Tooro District. The Land was commonly known as Nyamasaga Estate. On 16^th November 1965, the late Balya leased approximately 150 acres of the said land to the respondent for a term of 99 years from the date of registration of the lease. A Certificate of lease title comprising in LRV 598 Folio was issued to the respondent effective 1^st January, 1965.

In the year 1972, the respondent together with other Asians was expelled from Uganda by the Military regime and their property

$\mathbf{1}$

expropriated. The property was vested in the Departed Asian Property Custodian Board.

In the year 1982 the Expropriated Properties Act was enacted. Under the Act the Minister of Finance was empowered to return Expropriated Property to an Asian owner on application for repossession. The respondent did not apply for repossession of the suit property until the year 1996 when the Minister of Finance refused to issue him with a repossession Certificate. The reason for the Ministers' refusal to issue the respondent with a repossession Certificate was that in 1995 Clovis Balya who had succeeded Aberi Balya had applied for a re-entry on the lease on account of non-payment of rent and a re-entry had been noted by the Ag. Commissioner, Land Registration thus cancelling the lease interest of the respondent. It should be noted that at the time the re-entry was noted the respondent was not in charge of the property which had been vested in the Departed Asians Custodian Board.

On 6^th March 2006 the respondent re-applied for a repossession of the suit property which the Minister granted. A certificate of repossession of his lease was issued and the Registrar of titles issued to him a special Certificate of Title following which the respondent asked the appellant to vacate the suit property. The appellant refused to do so and instead filed a Civil Suit No. 065 of 2006 at the High Court Fort Portal against the respondent and the Registrar of Titles. The appellant sought an order for cancellation of the respondent's Certificate of re-possession No. 3530 dated 15.03.2006, an order for cancellation of the special Certificate of the title comprised in LRV 598 Folio 3, a permanent injunction restraining the respondent from

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disposing of or any way dealing with the said property, general damages, vacant possession and costs.

The respondent denied the claim and set up a counterclaim for special and general damages for loss of earning, trespass and costs. **Five** issues were raised at the trial.

- 1. Whether the re-entry by Clovis Balya Winyi on to the suit property was lawful. - 2. If so whether the sale of the property by Clovis Balya Winyi to the plaintiff was lawful. - 3. Whether the 1^st defendant committed any fraud - 4. Whether the plaintiff was entitled to the remedies prayed for. - 5. Whether the 1^st defendant was entitled to the remedies in the counterclaim.

The Trial Judge ruled in favour of the respondent. He dismissed the appellant's suit with costs and allowed the counterclaim. He awarded the respondent mesne profits of UGX 48,000,000/ $=$ per annum from the date of re-possession of the suit property, interest and costs.

The appellant appealed to the Court of Appeal on grounds:-

- 1. That the trial judge erred in law and in fact when he failed to properly evaluate the evidence on record and came to a wrong decision. - 2. That the learned trial judge erred in law and in fact in holding that the re-entry into the suit property by the appellant's predecessor in title was unlawful.

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- 3. That the learned trial judge erred in law and in fact in holding that the respondent was not fraudulent in applying for a Certificate authorising repossession - 4. That the learned trial judge erred in law and in fact when he held that the period of 90 days provided for in section 4 of the Expropriated Properties Act Cap 87 within which to make application for a certificate authorizing repossession was merely regulatory and not mandatory. - 5. That the Learned trial Judge erred in law and in fact in holding that the appellant had no legal or equitable interest in the suit property and that the respondent's failure or refusal to give the appellant notice could not have infringed the appellant's interest and thereby amount to fraud by the respondent. - 6. That the learned trial judge erred in law and fact when he refused to cancel the Certificate authorising repossession and to grant other reliefs prayed for. - 7. That the learned trial judge erred in law and fact when he awarded the defendant mesne profits which were not justified and were excessive in the circumstances. - 8. That the learned trial judge erred in law and fact in holding that the appellant would have no claim for compensation in the circumstances.

Arising out of the above memorandum of appeal issues were framed for determination by the Court of Appeal as follows:-

1. Whether the learned trial judge properly evaluated the evidence on record and arrived at a correct decision.

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- 2. Whether the re-entry into the suit property by the appellant's predecessor in title was lawful. - 3. Whether the respondent was fraudulent in applying for a certificate authorising repossession. - 4. Whether the period of 90 days provided for in section 4 of the Expropriated Properties Act Cap 87 within which to apply for a certificate authorising repossession was merely regulatory and not mandatory. - 5. Whether the appellant had legal or equitable interest in the suit property and if so whether the respondent's refusal or failure to give the appellant notice was fraudulent. - 6. Whether the Learned trial Judge wrongly awarded mesne profits which were not justified and were excessive in the circumstances. - 7. Whether the appellant has a claim for compensation in the circumstances. - 8. What remedies are available to the parties?

The Court of Appeal held that the trial judge had properly evaluated both versions of the case and upheld the judgement of the lower Court. The appeal was dismissed with costs to the respondent in both Courts.

The appellant appealed to this Court against the judgment of the Court of Appeal on the following grounds:-

1. That the Learned Justices of Appeal erred in law in holding the $\mathbf{G}$ suit property was under the Expropriated Properties Act.

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- 2. That the Learned Justices of Appeal erred in law when they relied on evidence of DW1 who was relying on an unregistered power of Attorney. - 3. That the Learned Justices of Appeal erred in law in holding that the suit property was properly dealt with by the Minister under the Act. - 4. That the Learned Justices of Appeal re-evaluate (sic) the evidence on record and thereby come to wrong conclusion. - 5. The Leaned Justices of Appeal erred in law in holding that the reentry on the suit property by the appellant's successor in title was unlawful. - 6. The Learned Justices of Appeal erred in law in holding that that nullification of the appellants purchase was justified. - 7. The Learned Justices of Appeal erred in law when they held that the period of 90 days provided for under section 4 of the Expropriated Properties Act Cap 87 within which to make application for a Certificate authorising re-possession was a merely regulatory and not mandatory. - 8. The Learned Justices of Appeal erred in law when they refused to cancel the Certificate authorising repossession and to grant other reliefs prayed for by the appellant. - 9. The Learned Justices of Appeal erred in law when they upheld an award of mesne profits to the respondent, which were not pleaded or proved and were excessive in the circumstances

At the hearing of the appeal the appellant company was represented by Mr. Andrew Kahuma who appeared together with Mr. Deo Bitaguma while the respondent was represented by Mr. Noah Mwesigwa who appeared together with Ms Janet Ayesigwa.

Counsel for the appellant argued grounds 1, 3, 4, 5, 6, 7 and 8 together because they were all related to the issue of re-possession. Grounds 2 and 9 were argued separately.

Counsel for the respondent argued the grounds in the same order.

## Appellant's Submissions on Grounds 1, 3, 4,5,6,7 and 8

Counsel argued that there was no dispute that the suit property was expropriated property. The dispute was whether the respondent's repossession in 2006 was properly upheld by both Courts below. He submitted that had both Courts properly addressed it, they would have found that respondent's repossession certificate was illegal, irregular, null and void and would have cancelled it.

Counsel submitted that repossession of expropriated properties was not meant to be an endless exercise as implied in the judgments of two courts below. The law allowed repossessions within 90 days from its enactment and was extended by another 90 days in 1993. There was no other extension after that date and therefore no repossession would be permitted after October 1993.

Counsel for appellant cited the case of **Mohan Musisi Kiwanuka vs** Asha Chand SCCA No.14 of 2002, where this Court held that a repossession certificate was not conclusive evidence that it was issued lawfully.

$\overline{7}$

Counsel submitted that in January 1994, the Minister embarked on disposal of unclaimed properties countrywide and he issued statutory instrument No.1 of 1994 cited as the Expropriated Properties (sale and disposal) order 1994 under S.8 of the Act. Under the order properties set out in the schedule to the order would be sold in a manner stipulated in the Expropriated Properties (repossession and disposal) regulation 1983 and whatever property remained unsold would revert to the controlling authority within the meaning of the Public Land Act, 1969.

Any property which was not repossessed after 30/10/1993 was vested in government and could only be dealt with by the Minister by way of disposal in accordance with the Expropriated properties (repossession and disposal) regulation, 1983. It was no longer open to the Minster to issue repossession certificate and once the respondent's application for repossession was rejected by the Minister on 8/11/1996 and the respondent did not file an appeal against the Minister's decision in line with S.14 of the Act his re-application should not have been granted because that this was more than twelve years since the repossession exercise was closed.

The trial judge in his judgment admitted that the application for repossession was made long after 90 days, which in his view, was not fraud on the part of the respondent, but an irregularity or illegality depending on letter and spirit of the act. The court of appeal did not comment on this finding and neither did they discuss it in their judgement.

Counsel submitted that the trial court having found that the repossession after 90 days was an irregularity or illegality ought to

 have found for the appellant and cancelled the Certificate instead if dismissing the case. That the first appellate Court should have reversed the dismissal since the trial Court had found that repossession was irregular or illegal and illegalities once brought to attention of Court override all matters of pleadings including admission

He cited case of Ms Fang Min vs Bellex Tours and Travel Supreme Court Civil Appeal No.6 of 2013, NSSF vs Alcon International Ltd SCCA NO.15 of 2009 and Makula International Ltd vs Eminence Cardinal Emmanuel Nsubuga (1982) HCB 11 to support the above submission.

Counsel submitted that without prejudice, even if there was an assumption that the suit property was available for repossession it was wrong for both Courts to uphold the respondent's repossession since in 1995, the respondent was aware of re-entry by Clovis Balya and did not challenge it and when he made an application for repossession in 1996 which was denied he did not challenge it. According to Counsel both Courts should have realized that in 2006 when the respondent was re applying for it the Minister had already dealt with the suit property and would only dispose of it in accordance with the Act and regulations.

It was not open to him to review or reconsider that application in 2006 even if the respondent presented to him new and compelling evidence to warrant the issuance of repossession certificate or even if he had acted in error.

Counsel cited the case of Mohan Musisi Kiwanuka vs Han Chand **SCCA No.14 of 2002** in support of this submission.

Counsel submitted that it was wrong for the Court of Appeal to uphold a finding of lower court that Minister had discretion to deal with the suit property and that with or without the Minister or Attorney General as a party, the Court was enjoined to arrive at fair decision based on the law.

Counsel submitted that lower court were heavily influenced by reentry to the lease in 1995 by Clovis Balya, reinstatement of the lease by the commissioner land registration in 2001 and certificate of repossession issued to the respondent in 2006 and relied heavily on re-entry as a dealing in the suit property which was nullified under the act but failed to consider the fact that the Minister had given the respondent his decision on repossession which decision was not challenged and besides that decision on repossession was not an endless exercise.

Counsel faulted the trial court for denying the appellants remedies sought on grounds that the re-entry was unlawful, averring that the first appellate Court should have corrected the same but failed. Further, he explained that the re-entry was made in 1995 by Clovis Balya who sold the freehold interest to the appellant. The appellant conducted a search before acquiring the freehold and he found out the lease had been cancelled. That the appellant had no hand in the entry of lease at all as found both courts.

Counsel submitted that first appellant court faulted the appellant for re-entering the lease based on falsehood that rent was not paid and said that it was misrepresentation of facts of the case as the appellant had never applied for re-entry because in 1995 she had no interest in

the land. That her interest began in 1997 upon acquiring freehold interest from Clovis Balya.

Counsel for appellant blamed the trial judge when he castigated the appellant for not conducting due diligence in Ministry of Finance and Custodian Board because the two offices were not custodian of land titles or register. He submitted that appellant conducted a search and confirmed there were no encumbrances before he acquired the interest.

Counsel faulted the first appellate Court finding that nullification of the appellants purchase was justified because the Minister had to first deal with the property. That there was no purchase, which was nullified by the trial court which court of appeal justified in the above.

Counsel prayed the appeal be allowed with costs in both courts below and respondent's repossession certificate be cancelled.

## Respondent's Submission in Grounds 1, 3, 4, 5, 6, 7 and 8

Counsel submitted that the appellant did not dispute that the suit property was expropriated property and that what he disputed was the respondent's repossession in 2006 and whether it was proper.

Counsel submitted that the appellant's argument on the above grounds of appeal were that the certificate of repossession issued by minister to respondent was issued in error as the period then of 90 days allowed under the law to claim the property had lapsed.

He noted that this same issue was raised as ground 4 in court of appeal, and the same was abandoned by the appellant. The Court of Appeal did not make a finding on the same.

The issue of 90 days within which to apply for repossession was abandoned on the first appeal by the appellant and the Court of Appeal cannot be faulted for having misdirected its self on an issue that it did not resolve and as such there was no decision for the supreme court in that respect to re-evaluate.

The court of appeal while dealing with ground 4 of the issue of repossession after 90 days period clearly stated, that "this ground was abandoned by counsel for the appellant and was not submitted upon at all. We are accordingly not pronouncing ourselves upon the same"

That the appellant while abandoning the ground in Court of Appeal, conceded that the period of 90 days was regulatory and he was now estopped from making this argument the gist of his appeal before this court.

On the issue of certificate of repossession issued in 2006, Counsel for respondent submitted that the Court of Appeal properly re-evaluated the evidence and came to the right conclusion when it held that the Minister's decision in 1996 was premised on an existing purported reentry which Court found to have been null and void abinitio and therefore having found the same to be null and void, the Minister was free to exercise his discretion under the Expropriated Properties Act to issue a certificate of repossession to the respondent in 2006

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Counsel for respondent submitted that the Expropriated Propertied Act was enacted to protect the true owners of expropriated properties as well as government from fraudulent claimants and he cited the preamble of the Act.

That the intention of the Act was to return the expropriated properties to the former owners to take precedence over any other form of disposal of the expropriated properties by the government and as such the Minster in exercise of his discretion must have done so bearing in mind the intentions of the Act to support this argument. Counsel submitted that the case of **Mohan Musisi Kiwanuka vs Asha Chand** was distinguishable from this case as in the **Mohan case**, the Minister issued $\mathbf{a}$ purchase certificate to the appellant therein and subsequently cancelled the same and then purported to issue repossession Certificate to the respondent.

This Court held that upon issuing the certificate of purchase in accordance with the Act, the Minister could not reverse his decision, because upon the issuance of a certificate by the minister, the property ceased to be expropriated property and as such the Minister could not subsequently deal with the same as it was no longer subject to the Expropriated Proprieties Act.

Counsel submitted that upon the Ministers' refusal to issue the certificate of repossession to the respondent in 1996, the property did not cease to be expropriated property. The suit property maintained its character as expropriated property and until the Minister had dealt with the property in accordance with the Act, nobody could deal with the same. That the refusal to grant the certificate of repossession

would not be dealing with the suit property as is alleged by the appellant.

Counsel submitted that under the Expropriated Properties Act, nobody could deal with any expropriated property before the minister responsible had dealt with it and this power was rightly exercised in 2006 when he granted the certificate of repossession to the respondent.

On issue of re-entry by the appellant's predecessors, Counsel for respondent submitted that the appellant had not made any submissions to fault the decision of the trial court or court of appeal on the finding that the re-entry was illegal. The same amounted to dealing with the expropriated property before the property had been dealt with by the minister under the act, what the appellant faults however is that the court wrongly held that the re-entry was done by the appellant and not Clovis Balva.

The trial Judge correctly held that the plaintiff (now appellant) inherited the title of the predecessors with all its attributes, liabilities and fetters and that the Judge was alive to the fact the re-entry was Clovis Balya.

He submitted that appellant stepped into the shoes of Clovis Balya and could not obtain better title to the suit property than the predecessors had.

The Court correctly held that the re-entry was unlawful. The issue of whether the same was by the appellant or appellant's predecessors is a moot question that does not nullify the findings of the court of appeal.

He prayed that the decision of the Court of Appeal be upheld and this ground be dismissed.

## Appellant's Submission in rejoinder on grounds 1, 3, 4, 5, 6, 7 and $\mathbf{8}$

Counsel for applicant submitted that the respondent does not contest the fact that the repossession was obtained ten years after the first application was rejected by the Minister and that equally uncontested by the respondent was the fact the repossession was obtained after 90 days stipulated in the act as well as the extended period under the General Notice No.88 of 1993.

Counsel reiterated that the Court had mandate to inquire into matters of illegality brought its attention at any stage.

That it was premature that the ground of appeal on the point was abandoned in the Court of Appeal especially when the trial judge acknowledged that he was aware that repossession after 90 days or the extended period thereafter was illegal and he should have set it aside.

That Court of Appeal had the duty bound to do so on ground of illegality notwithstanding that the ground on the point was abandoned by the appellant's Counsel.

That the appellant's Counsel purported concession that 90 days period an irregularity did not make repossession legal and the was respondent was not any way arguing that the repossession after 90 day or extended period was legal.

On the contention that this Court should not consider that point because it was abandoned on appeal Counsel submitted that there

was nothing, which stops the appellant from raising matters of illegality to this Court at this stage as asserted by the respondent's counsel.

On the repossession Certificate issued in 2006 he reiterated that once he Minister took a decision to return or not to return an expropriated property, he could not turn around and make another decision notwithstanding the fact his previous decision was in error or based on wrong facts which is the ratio in the Mohan case that is not distinguishable as claimed by the respondent.

## Court's finding

The submissions by both counsel on grounds 1, 3, 4,5,6,7 and 8 bring out two issues. The first issue is whether by the time the respondent obtained his repossession certificate in 2006 the Expropriated Properties Act was still operational or it had long expired.

The Act was enacted in 1982 and it come into force on 21^st February 1983. Section 4 of the act provides as follows;

## **"Application for Repossession**

Any former owner of property or vested in government under section 2 may, within ninety days of the commencement of this act, apply to the minister in writing and in such form as may be prescribed, repossession of the property or business"

The ninety days prescribed by the act expired before the respondent applied for repossession of the suit property. The minister entertained the respondent's application both in 1996 when he declined to issue him with a repossession certificate and in 2006 when the application was successful and a repossession certificate which was also registered on the title was issued.

Counsel for the appellant contended that after the expiry of the initial period of ninety days it was extended by another period of 90 days which had also expired. Counsel referred court to a Statutory

Instrument Supplement No.1 made on 22rd November 1993 for his submission that after the extension of three months expired there was no more extension and therefore the minister had no power to issue a repossession certificate outside the extension.

I have perused the Instrument refered to and it is not correct to refer to it as an extension of the period prescribed by the Act. The order is cited as the Expropriated properties (sale and disposal) order, 1994 and was a notification for sale of unclaimed properties set out in the schedule to the order and the suit property was not one of them.

There is no way the Statutory Instrument would have extended a period which expired in 1983 and the fact that throughout that period the Minister was dealing with expropriated property supports the view held by the Courts below that the period of three months was merely regulatory and to my knowledge the Act has not even been repealed. The act empowered the Minister to return the property to former owners or sell it if it was unclaimed and there was nothing to stop him from dealing with the property in 2006 as longer as it was still available for repossession or sale.

The second issue is whether the property was in fact available for repossession. It should be observed that following the expulsion of the Asians in 1973 their property was vested in the Departed Asians Custodian Board. According to a letter dated 21.12.1995 from the

Executive Director Departed Asians Property Custodian Board there was evidence that even after the Expropriated Property Act was enacted in 1983 the board continuously paid ground rent to Clovis Balya Winyi for the estate of Bishop A. K Balya (deceased).

Both the high court and court of appeal emphasized the aim of the act which is hereby restated;

"An Act to provide for the transfer of the properties and businesses acquired or otherwise expropriated during the military regime to the Ministry of Finance, to provide for the return to the former owners or disposal of the property by the Government and provide for other matters connected herewith or incidental thereto."

The respondent first tried to repossess the suit property in 1996 but the Minister could not issue with him a certificate of repossession because a re- entry had been noted on the certificate of title and was therefore, not available for repossession. The re-entry was cancelled by the Commissioner Land Registration and once the encumbrance was removed the Minister could deal with it by way of issuing a repossession certificate to a returning Asians owner or sell it. Counsel for the appellant submitted that the Minister by declining to issue a repossession certificate had dealt with the property and it was not available for him to deal with it in 2006 when he issued a repossession certificate. The appellant's counsel relied on the case of Mohan Kiwanuka vs Asha Chand Supreme Court Civil Appeal No.14 of **2002** where the dispute centred on two competing certificates issued by the Minister of Finance. On June 24th 1991 the Minister had issued a certificate of purchase to Mohan Kiwanuka (the appellant) as $\geq$

purchaser and then on September 16^th 1993 he issued a certificate authorizing repossession to Asha Chand, a former owner of the property whose widow and executrix of the will is the respondent. Mulenga, JSC held as follows:-

"In the instant case, the purchase certificate was issued by a Deputy Minister of Finance, and subsequently, the repossession certificate was issued by the successor, a Minister of State of Finance, who asserted after the event, that the sale ordered by the predecessor was done in error. I have already given, and need not repeat here, the reasons for my conclusion that the sale was lawful and not made in error. However, even assuming for a moment, that the Minister had material, showing that the sale was in error, that material should have been availed to the court, which had the jurisdiction to determine the validity of the purchase certificate in the trial of Civil Suit No 693/92. In issuing the repossession certificate in respect of the suit property, the Minister purported to exercise power he no longer had. It follows that his act had no legal effect. It did not revoke or otherwise annul the appellant's purchase certificate..."

In the case of **Mohan Kiwanuka**, certificate of purchase and that of repossession created two competing interests and the Court rightly held that once the property had been sold and the Minister issued a certificate of purchase the property was no longer available for repossession. So when the Minister declined to issue a repossession Certificate there was no transaction on the property that created any competing interest that would preclude him from returning it to the former owners who had expressed interest in repossessing it in 1996

but the Minister had been prevented from issuing a Certificate because the title was encumbered by the re-entry which was subsequently cancelled. Once the encumbrance was removed the property became available for the Minister to deal with and he rightly issued the Certificate of repossession to the respondent. There was no illegality to warrant re-opening an issue that was rightly abandoned by the appellant at the Court of Appeal. I would therefore dismiss grounds 1, $3, 4, 5, 6, 7$ and $8$

### Appellant's submission on ground 2

Counsel for appellant submitted that the Power of Attorney which was exhibited at the trial as exhibit DE11, showed that it was executed on $11/10/1995$ . The witness lied when he testified that he had been handling the matter since mid-1994 with a Power of Attorney which was not be possible when the power of attorney was executed in October 1995. That said power of attorney was not registered in Uganda as required S.19 (v) of the Stamps Act Cap 342 and was therefore, unenforceable.

### Respondent's submission on ground 2

Counsel for respondent submitted that this ground should be dismissed as the issue of unregistered power of attorney was neither raised at the court of appeal nor in the High Court. The appellant did not dispute the evidence of DW1 when he testified in Court and neither was his evidence challenged during cross examination.

That it was trite law that matter not dealt with on the trial cannot be brought up as fresh matters on the appeal and that the same was addressed in Fang Min.vs Belex Tours and Travel Limited

## consolidated with Crane Bank Limited vs Belex Tours and Travel Limited (SCCA No.6 of 2001).

Counsel submitted that failure by the appellant to challenge evidence by Dw1 at trial or the power of attorney when the same was tendered into court as an exhibit, he cannot as an afterthought now raise the issue on second appeal in this Court

# Appellant's submission in Rejoinder on ground 2

Counsel for the appellant submitted in rejoinder that the respondent did not dispute the fact that the document was not registered, that raising the matter at the trial Court and Court of Appeal, counsel submitted that registration or non-registration of a Power of Attorney is matter of law, that if power of attorney is not registered, it is nothing in law and it cannot be acted or relied upon in any way or proceeding. That constituted an illegality which could be brought to the attention of this court at any time and court would decide on it.

Counsel for appellant faulted the Court of Appeal for failure to reevaluate the evidence otherwise it would have come to conclusion that the evidence of the respondent given on his behalf by someone purporting to be his attorney was no evidence at all because the power of attorney was not registered.

The failure to challenge the power of attorney at the trial or Court of Appeal does not make it legal document.

### **Courts finding**

IBRAHIM HASSAN MOLEDINA, a donee of the impugned power of Attorney was the only witness called by the defence. His competence to testify on the matters raised before the Court was never challenged

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or made an issue. The issues before the Court as framed by the parties in the memorandum of Scheduling Conference and on which he testified centred on the re-entry by Clovis Balya Winyi onto the suit property, the sale of the suit property by Clovis Balya Winyi to the plaintiff and whether there was a lawful repossession of the property by a former Asian owner. Apart from the oral evidence adduced on behalf of both parties there was a lot of documentary evidence regarding these three transactions to the extent that the evidence of the donee of the Power of Attorney on which he was cross examined did not prejudice the appellant in any way. With or without the evidence of the donee of the Power of Attorney, Court had sufficient evidence on which to resolve the contentions about the re-entry and the issuance of the repossession Certificate in 2006 when the Minister had dealt with the property in 1996 and declined to issue the repossession Certificate. This to me explains why the issue of his competence as a witness was never raised both at the High Court and the Court of Appeal and so long as his evidence was admissible I do not think that the question of illegality would arise. Furthermore it is now an established principle that the grounds of appeal in this Court should emanate from the decisions and proceedings of the lower Court so that if an issue or question was never raised in the High Court which would adjudicate on it and then considered at the Court of Appeal which would also adjudicate on it after a re-evaluation cannot be considered for the first time at the Supreme Court. This point was underscored in Ms Fang Min Vs Belex Tours and Travel Limited SCCA No. 6 of 2013 where the Supreme Court held as follows:-

"... on appeal, matters that were not raised and decided on in the trial Court cannot be brought up as fresh matters. The court would be wrong to base its decision on such matters that were not raised as issues and determined by the trial Court."

On the above considerations ground 2 also fails.

### Appellant's submission on ground 9

Counsel for appellant submitted that the respondent was awarded mesne profits, yet he did not claim mesne profits anywhere in the counterclaim and DW1 did not at all allude to mesne profits in his evidence. That it was wrong for the trial judge to award mesne profits of UGX48.000.000 per annum from the date of repossession to the date of taking vacant possession of the suit property and faulted the Court of Appeal for upholding the same. That under S.2 of the Civil Procedure Act, mesne profits are special damages which must be pleaded and proved specifically and since they were not pleaded and proved, the Court of Appeal should not have upheld them.

### **Respondent's submissions on Ground 9**

Counsel for respondent submitted that learned Justices of appeal rightly up held decision for award of mesne profits to the respondent and prayed the same to be up held.

Counsel relied S.2 of Civil Procedure Act cap 71 which defines mesne profits for the proposition that for award of mesne profits to made, the a party must prove that the other party is in wrongful possession and as was correctly stated by the Court of Appeal, on page 30 of the record, mesne profits are profits lost to the owner of the land by reason of his/her having been wrongly disposed of the same. To

that extent the mesne profits are compensation for the loss suffered due to the breach of contract, then they are damages in nature.

That respondent in the counterclaim claimed both special and general damages he suffered by reason of the appellant's action and that the essence of profits was for wrongful possession. It was not disputed at trial and in Court of Appeal that the appellant took over the suit property and enjoyed use of it making over 800milions from the operation of the land as stated by PW3

Counsel for respondent submitted that court of appeal correctly held that mesne profits were appropriately awarded to the respondent and although there was no direct evidence led by the respondent as to the actual loss of income of mesne profits, looking at evidence as whole ,award of mesne profits was proper and prayed the Court to find so.

## Appellant's submission in rejoinder on ground 9

Counsel for appellant reiterated his submission that mesne profits were wrongly awarded to the respondent and upheld by the court of appeal since they were neither pleaded nor proved for by the respondent, that respondent admitted in his submission in reply at page 8 there was no direct evidence led by the respondent as to the actual loss of income mesne profits and prayed the award of mesne profits be set aside.

#### Courts finding

The respondent was awarded mesne profits which he had not pleaded in his counterclaim. What he claimed were special damages and general damages for loss of earning and trespass. The issue framed at the Court of Appeal was whether the learned trial judge wrongly awarded mesne profits which were not justified and were excessive in the circumstances. The Court of cited with approval the case of **Elliot** Vs Boynton (1924) 1 ch 236 (Court of Appeal) where Warrington, L. J, at page 250 said; "Now damages by way Mesne profits are awarded in cases where the defendant has wrongfully withheld possession of the land from the plaintiff"

Section 2 (3) of the Civil Procedure Act defines mesne profits as; "Those 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 shall not include profits due to improvements made by the person in wrongful possession."

In awarding mesne profits the Trial Judge made the following consideration

"I take serious consideration of the fact that, for what the plaintiff has done on the estate, the defendant would, upon repossessing the suit property, have had to first make heavy investment to clear the overgrown tea bushes to render it usable. Therefore in awarding what are really mesne profits from the plaintiff's use of the suit premises from the date of the said certificate of repossession, equity sets in and I have to take cognisance of the fact that the defendant will now take possession of property whose value has been greatly enhanced, as it is a going concern.

Therefore, doing the best I can in the circumstances of the case, I award the sum of U Shs.48 million per annum in mesne profits from 16^th of March 2006, when he obtained the certificate of repossession, to the date of taking vacant possession of the suit

$25$

property. This means as at the date of judgement the defendant is entitled to sum of 160m /= as damages in mesne profits..."

On the other hand the Court of Appeal made the following findings;

"The essence of awarding mesne profits is wrongful possession. The appellant took possession of the suit property in 2006 and the respondent was allowed to repossess it in 2010. He would therefore be entitled to damages for loss of use and earnings of the suit property for the four years.

It was appellant's contention that the respondent did not claim for mesne profits and as such none ought to have been awarded to him. Mesne profits are the profits lost to the owners of land by reason of his or her having wrongly dispossessed of the same. They are usually claimed jointly with an action for recovery of land.to the extent that mesne profits are compensation for loss suffered due to breach of contract, when they are damages in nature.

The respondent in the counter claim claimed both special and general damages he suffered by reason of the applicant's action.

We find from the record that though no direct evidence was led by the respondent as to what was the actual loss of mesne profits, looking at the evidence as a whole Pw3 led evidence to prove that the appellant was earning in 2007 profit of shs.800M /= overall, the suit land inclusive. This being the evidence before the Trial Judge, we consider the award of shs. $48M$ = by the Trial Judge appropriate.

We have no reasons to disturb the same.

# For that reason, we answer issue six in the affirmative and uphold the award."

The concurrent finding by the two courts that respondent, who was wrongly denied access to his property following repossession was well founded. Both courts properly explained the reasons for granting the respondent mesne profits and I find no reason for departing from the concurrent finding of the two courts and as a consequence ground 9 of appeal is also dismissed.

In the result, having found no merit in any of the grounds of appeal, I would dismiss the appeal with costs to the respondent.

Dated at Kampala this....................................

Eldad Mwangusya Justice of the Supreme Court

### THE REPURLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: Katureebe CJ, Arach-Amoko, Mwangusya, Opio-Aweri, Mwondha, JJSC.)

#### CIVIL APPEAL NO. 02 OF 2015.

#### **BETWEEN**

#### **MABALE GROWERS TEA FACTORY LTD:::::::::::::::APPELLANT**

#### **AND**

#### NOORALI MOHAMED::::::::::::::::::::::::::::::::::::

{Appeal arising from the judgment of the Court of Appeal at Kampala (Kavuma, Nshimye and Kasule, JJA), in Civil Appeal No. 100 of 2010 dated 7^th November, 2002}.

#### **JUDGMENT OF M. S. ARACH-AMOKO, JSC**

I have had the benefit of reading in draft the Judgment of my learned brother, Hon. Justice. Mwangusya, JSC, and I agree with his findings and decision that this Appeal should be dismissed with costs to the respondent.

Dated at Kampala this ....................................

**M. S. ARACH-AMOKO** JUSTICE OF THE SUPREME COURT

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

## CIVIL APPEAL NO.2 OF 2015

[Coram: Katureebe, CJ, Arach-Amoko, Mwangusya, Opio Aweri, JSC, Mwondha. JSC]

#### **BETWEEN**

# MABALE GROWERS TEA FACTORY LTD :::::::::::::::::::::::: APPELLANT **VERSUS**

# NOORALI MOHAMED ::::::::::::::::::::::::::::::::::::

[Appeal from the Judgment of the Court of Appeal at Kampala (S. B. K. Kavuma, A. S Nshimye and Remmy Kasule, JJA at Kampala, dated 7^th November, 2002 in Civil Appeal No. 100 Of 2010 dated 7^th November, 2002l.

#### JUDGMENT OF KATUREEBE, CJ

I agree with the Judgment and orders proposed by my brother Mwangusya, JSC and I have nothing useful to add.

As all other members of the Court agree, this appeal is hereby dismissed with costs for lack of merit.

The Judgment and decision of the Court of Appeal is upheld.

$\frac{15}{15}$ day of $\frac{15}{15}$ dec $\frac{15}{15}$ . Dated at Kampala this........

Burkert

Bart M. Katureebe **CHIEF JUSTICE**

#### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KOLOLO

Coram : (Katureebe CJ, Arach-Amoko, Mwangusya, Opio-Aweri, Mwondha $JJ. S. C$

#### CIVIL APPEAL NO.2 OF 2015

#### **BETWEEN**

## MABALE GROWERS TEA FACTORY LTD........... APPELLANT **VERSUS**

NOORALI MOHAMED ....................................

(Appeal from the Judgment of the Court of Appeal of Uganda (S. B. K. Kavuma, A. S. Nshimye and Remmy Kasule JJA) at Kampala, dated 7^th November 2002 in Civil Appeal No. 100 of 2010).

#### **JUDGMENT OF MWONDHA, JSC**

I have had the opportunity of reading in draft the judgment of my brother Mwangusya JSC. I agree with the reasoning and decision therein and the order of costs as proposed Date at Kampala this $\frac{1}{\sqrt{2018}}$

Olivor Oli Mwondha JUSTICE OF THE SUPREME COURT

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

#### **AT KAMPALA**

Coram: Katureebe, CJ; Arach-Amoko, Mwangusya, Opio-Aweri, Mwondha, J. S. C.

### CIVIL APPEAL NO. 02 OF 2015

#### **BETWEEN**

# MABALE GROWERS TEA FACTCRY LTD:::::::::::::::::::::::::::::::::::: AND

NOORALI MOHAMED::::::::::::::::: **RESPONDENT**

(Appeal from the Judgment of the Court of Appeal of Uganda at Kampala by S. B. K Kavuma, A. S. Nshimye and Remmy Kasule, JJA, dayed 7^th November 2002)

#### **JUDGMENT OF OPIO-AWERI, JSC**

I have had the benefit of reading in draft, the judgment of my Learned brother Hon. Justice Mwangusya, JSC. I agree with his reasoning and decision therein and the order of costs as proposed.

$10^th$ ... $\text{Jday of}$ OCTABER Dated at Kampala this. $\ldots 2018.$

> **OPIC-AWERI** JUSTICE OF THE SUPREME COURT