[1997] UGHCCD 1

## **THE REPUBLIC OF UGANDA**

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

## **CIVIL SUIT 445/95**

JOSEPH MULUTA: ::PLAINTIFF VERSUS

SYLAVANO KATANA: : : :::DEFENDANT BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA

## JUDGMENT:

The plaintiff filed this action against the defendant claiming general damages for wrongful eviction and trespass replacement value of wrongfully destroyed property specific performance of a contract and for general and special damages for ⁵ breach of contract.

according to the plaint is simply that at the material time the plaintiff was the owner of a customary holding with developments thereon situate at Kisalosalo zone Kyebando being a leasehold on conversion owned ¹⁰ by the defendant. the plaintiff having acquired the said customary holding by way of sale on 10th October 1969. The background of this case

The plaintiff subsequently erected rooms commercial basis. ¹⁵ and 3 rooms respectively which were being rented out on on the said customary holding three permanent blocks of houses containing 14 rooms, 5

Sometime in 1992 the defendant agreed to sell the plaintiff part of the defendant's mailo interest covering the area held by registration as owner thereof or compensation as customary tenant in respect thereof. The defendant shall ever further and contend

the upon the defendant's land and 5 erected illegal structures. the plaintiff plaintiff unlawfully entered that he acquired ownership of the land in full accordance with the law and no other interest was held on the said land by any other person or at the time but in 1992

In July 1992 the defendant offered for sale to the plaintiff 2.5 acres of the defendant's land and at all time it was agreed by the parties that if the plaintiff failed to complete payment 10 entitled to terminate the sale without refunding to the plaintiff Uganda shillings 1.000.000/= paid down as payment of the purchase price. The plaintiff duly failed to pay the purchase price and the defendant duly terminated the agreement. He subsequently gave the plaintiff six months notice to vacate the land but the 15 plaintiff refused to vacate the land and insteady continued to erect illegal structures thereon. the defendant would be of the purchase price for the land,

In or about September 1992 the Kampala City Council duly wrote to the plaintiff directing him the illegal structures erected upon the defendant's land by the plaintiff. to remove

20 And in or about 1993 pursuant to an order of the resistance council II Court Kyebando Kisalosalo zone dated 13th November 1993 declaring that the plaintiff (and others) vacate the defendant's land the learned chief magistrate's court of Mengo at of eviction of the plaintiff (and others) from the defendant's land. Mengo lawfully issued a warrant

In obedience to the said court order the plaintiff was duly lawfully evicted from his illegal destroyed on the land by officers of this Honourable Court. structure and the same was

The plaintiff as PW1 called one witness in support of his version one called Abubaker Walagira PW2, whereas on the part of Karamage Katama DW1, Goeffry Francis Kasozi Lubega DW2, Eva ⁵ Luswata DW3*,* Obonyo Bosci DW4, finally one Hamud Mutanda Ssenyonga DW6 . the defence six witnesses gave evidence in the names of Syvliano Francis Nyenda Kiiza DW5 and

10th October 1969 he shillings 170/=. He gave the land lord Kisosonkole the deceased ¹⁰ There was a sale agreement to that effect in Luganda version and its English translation which were tendered in evidence and marked as exhibit Pl and P2 respectively. In his testimony PW1 testified that on bought land/kibanja from one Baturumayo Baraturwanga and paid him a kanzu worth shillings 30/= only.

He bought the land with the consent of Kisosonkole after he 15 had given him the kanzu. He constructed in this land/kibanja three permanent commercial houses. The houses were for renting and there was one room for the caretaker.

There were three big houses. One block had fourteen rooms. The second house had five rooms and the third house had three 20 rooms. Each room was fetching 1.400/= shillings per room per All Government servants and businessmen. All the tenants were paying rents. He knows the defendant right from 1992. The defendant introduced himself to him as the owner of the land on which his land is situated. The defendant told him that he had bought the ²⁵ land from the family of the late Kisosonkole in the year 1971 and He advised PW1 to purchase He believed him told the witness that he had been living abroad, the land on which his house stood. month that was in 1995. those rooms were occupied by

and accepted the idea. The defendant directed him to his place He agreed to purchase the land at the tune of The defendant allowed him to pay in instalments. He gave him a cheque dated 29th May 1995. The evidence as exhibit P3. at Dewinton Road Kampala where he used to sell flowers together with his wife. him a deposit of one million shillings and the balance to be paid defendant acknowledged the same. The receipt was tendered in shillings 3.5 million per acre.

10 received any compensation for the buildings destroyed. He had never been sued in any court in respect of any case initiated by the defendant. Sometime he was served with a document exhibit P4 dated 19th October 1995. The document does not bear his name. 15 The document came from Mengo court and he received it three days prior to the execution. He had never been sued in Mengo Court. The document was served on him on a Saturday and on the following day they started destroying his properties. The name of the auctioneer who did this was one Mulondo of Nile auctioneers. The ²⁰ latter came with the son of the defendant and the chairman RCs. Those people came armed. They were armed with panga. The court brokers came with the police. He protested against their action but they threatened to shoot him. refunded the balance of one million shillings. his buildings were destroyed without any notice and he never He attempted to pay the balance but without success, later The defendant had never

He is no longer receiving any rents and blamed the defendant ²⁵ for this loss of income. He prayed court to order the defendant for this loss of income he was generating income from the to pay 22 rooms. He also requested court to order the defendant to

compensate him shillings 50 million he spent on construction of those houses. He further requested the court to order the defendant to specifically fulfil enforce the agreement. In case the court has not mae an order for specific performance the defendant should refund shillings 1.000.000/=.

$\mathsf{S}$

$10$

When cross examined PW1 replied that there were proceedings of the RC II court between Katamba and others. The other were 38 defendants. He was not aparty in the proceedings and he was not defendant No. 23 in those proceedings. He paid 3.5 million shillings for those acres. (He has paid only 1 million shillings). He looked for the defendant and could not see him. He never received any notice from Katama's lawyer Mulira and company advocates. And it is not true that one million shillings was unrefundable. He had never been served with an injunction order. In re examination he replied that he is a retired member of the local council (LC). All cases start with RCI court. Batarangwo sold him the kibanja and then left.

PW2 testified that he had been looking after the home of the plaintiff for the last ten years. There were three houses on the There was one which had fourteen rooms and there was a land. $20$ boy's quarters with five rooms. The plaintiff also built house with three rooms. He was the one who was looking after the All houses were built of bricks and roofed with place. corrugated iron sheets. They were houses for renting. Each room was being rented for 14.000/= per month. He was at the place all 25 These structures/houses were demolished by Nile the time. Auctioneers in conjunction with the defendant. The plaintiff was given a receipt when he paid for the land. The witness

$\mathsf{S}$

and when he returned from exile in February 1986 he found that some people had encroached He found some houses on the land. He went and contacted both his lawyers and Kampala City Council. His lawyers were Mulira and company advocates and ⁵ on contacting Kampala City Council he found that they had not permitted anyone to build His lawyer gave notice to the occupants of his land to stop building and to demolish the illegal structures. on his land. one zone 5 which is his land.

He knew Muluta the plaintiff and he served him with notice. 10 The plaintiff pleaded that he could not vacate because he said resident there and that he had found him (the plaintiff) there. Muluta later suggested that he would like to he be permitted to pay by instalments. They agreed that the 15 It was agreed that the plaintiff pays shillings 1.000.000/= million as deposit and that the balance was payable within one month. He issued him with a receipt EXP 3. pay for his piece of land where he was living and requested that plaintiff pays 3.5 million shillings per acre. that he was a

According to the oral agreement he would take possession ²⁰ after full payment. When he did not pay within a month he wrote The unrefundable and that if he failed to pay within the stipulated time they would have to negotiate a fresh. The plaintiff terms. Muluta who negotiated purchase ²⁵ for any compensation from him until he heard his demands in court. There were other occupants on his land like the getting notices to quit plaintiff. accepted the of the disputed land/kibanja and he had never demanded Some vacated the land on money was to him to remind him about his obligation. It was for the

Muluta was one of the They were claiming He was served with that they should vacate. The ^j udge to the RCs. others took legal actions against him. people who took the defendant at Mengo Court, that they were traditional customary tenants. notice but the ruling was then was unwilling to demolish the house and referred the matter

He wrote to Muluta but the latter never replied. Then his lawyer wrote to Muluta on 17th August 1992. He wanted his lawyer to finalise the matter. The latter was addressed to Mulira and ¹⁰ Co. Advocates EXP 1. He delivered the latter personally to Mr. Mulira. He never replied and instead took him to court. The plaintiff had never paid the balance.

The court at Mengo took action when contacted by one Sserunjogi 15 court brokers who were directed to carry out the eviction but the court's orders to carry out the evictions about three occasions. The plaintiff said had been in occupation of the land since 1987. He said this when they met at the RCs but he kept on changing the dates. It appeared Muluta has been 20 in occupation of this land in the years 1986 and 1987. There were about ³ ⁸ people who were staying on his land. were on and off on

their structures. others had some permanent structures. Those notices were given 15th September 1992. To the best of his knowledge notice was ²⁵ on also given to Muluta. The building referred to by KCC was At first there was one and then he built a second one. The KCC told him that no building plan had been approved so alongish building. Eventually the illegal structures were demolished were mud land and wattle the KCC gave those people whose plans were not approved to remove Some structures by Nile Auctioneers. He had stayed on this land same. He wanted also the court to award him costs. DW1 reiterated that ⁵ valuation report by Katuramu and company valuers to show that there was nobody on the land by March 1987. The said report was tendered in court as EXP D2. there was a He objected to his claim and he wants the plaintiff to pay him for the loss. illegally and had stopped him from developing the

In cross examination he replied that the plaint in Mengo 680/94 is between Joseph Muluta vs. Sylvano Katama and Nile 10 General Auctioneers. The plaint was put in evidence as Exhibit P5. There is no written statement of defence to the said plaint. The plaint was not brought on behalf of ³ ⁸ others. That is not the plaint in which Muluta and others were evicted. He does not have the plaint in which Muluta and others sued him. Muluta sued 15 him in court of RCs. He did not have the document with him then in court. He could bring them later but identified one in which 1 million was paid and said there was nothing to show that the amount was un refundable.

In re examination he replied that the case at Mengo has 20 never been determined as per exhibit 5.

DW2 is He obtained his since then. school Nakawa. a lands surveyor by profession. qualification at the end of 1956 and had been in private practice He knew Katama when he was still in engineering

In early ¹⁹⁷⁰ Katama asked him to carry out ^a survey of ¹⁵ ²⁵ of'land he bought from Cyprian Kisosonkole. He did this The land was undeveloped and acres personally by visiting the sight. there were no people. He carried out the survey for about a week

and was not Nobody came crops or that the land belongs to him. approached by any resident in the area. to claim either the

Eva Luswata an advocate with Kakooza and Kavuma advocates. In 1992 he was working for Mulira and company ⁵ advocates. He legal assistant. He knew Sylivano who was a client of Mulira and company advocates. At one time the defendant instructed him that there was one Muluta on his land and that had offered him to buy land in Bukoto. He then showed him a letter with certain conditions for sale. It ¹⁰ was Mr. Katama who wrote that letter and it to Muluta. legal backing. So he wrote a letter to Muluta pointing out his obligations. The witness identified exhibit DI. He then told him that that letter would require some was addressed DW3 was He signed the letter. was a one Katama

15 The fourth witness called by the defence was Obonyo Bosco Ambrose a resident of Nakawa housing estate and a senior city legal officer in the legal department of Kampala City Council and the regulations made there under. And the maintenance of law within the city. He also ensures running of the regulations for 20 the entire city, controls of legal activities and keeping and maintaining the welfare of Kampala citizens. They have men and women employed below them within the city. These are called enforcement officers. They are supposed to work together with the technical staff of the city council. They work as a team. This include health officers, building inspectors and council ²⁵ agents.

So if anybody is building ^a house he must provide plan council. All developments in the city have to be approved by the city

The technical officer scrutinises If the building does not conform to ⁵ demolish it. title the regulations are clear. He who builds must have ^a title. If he does not have one It is at that time they take his plans cannot be approved, legal action. accompanied by a land title. the plan to conform with the zoning particulars of the city. Then the plan is approved. that requirement it is an illegal structure and they proceed to If a person building had a

He knows It falls within KCC 10 jurisdiction. He is conversant with Block 212 Plot 82 Kyebando. That particular case was reported to their office. In fact they had cases of illegal building including Kyebando and Kawempe. written to them stopping illegal developments. Others stopped others continued with impunity. a place called Kyebando. A letter was

15 All over the place there were illegal structures. Their men stopped them. Other building they demolished. He knew Joseph Muluta. He was one of the illegal developers they stopped him. They served him with notice because he was building without approval. He was putting up a residential house. They told him 20 to stop but he continued building. Their response to that they demolished some buildings within Kyebando. But he did not know whether Muluta's was involved normally they are under instructions to demolish but failure to do so the status remains illegal structures.

The fifth witness called by defence was Francis Nyende Kizza ²⁵ PW5. resident of Kyebando Nsooba zone and Chairman He had been to Kyebando since 1968. Kisalosalo and Nsooba zone is large He was a Board of Governors St. Steven Boarding Primary School.

are but his house is near Kisalosalo zone. He knew Katama. He has land in Kisalosalo zone and came to know this in 1968 because the home of his parents are near that land. He knew one of the persons in that land called Nakato and also knows one Joseph ⁵ Muluta. The latter had ^a plot there but was not staying there. He had ^a house in the land in the 1987. He is incharge of security in the area and knows everybody in the parish. Before he was appointed defence secretary there houses in the area but in 1987 a house was built with four rooms. Prior to the ¹⁰ building of that house in ¹⁹⁸⁷ there building in that particular place. It was possible for somebody to have built the house without his knowledge. It is the RCs of the local area who would be responsible for that but for the witness he was incharge of the whole are which comprises six RCs. Whenever somebody 15 wanted to build one must give notice to the RCs of the area and he only intervenes when there If there are strangers in the area he records their presence and he checks from house to house and finds out how a new man came in the area. were no was no is a dispute.

With regard to the land in dispute they went around Katama's 20 plot. He was called by the LC1 that there was a dispute about Muluta's plot. He found there a building. The Chairman stopped them in March 1991 from building. They were making an extension to ^a house which was already there.

March ¹⁹⁹¹ and when Muluta had just made ^a foundation to continue ²⁵ with building there was a dispute between him and Nalubwama who Everybody was claiming ownership of the He lands. In cross examination PW5 replied that he was around in was planting there yams. And when Muluta was constructing a house in 1987.

never received any complaint*.* However Katama acquired the land from one Kisosonkole. Mutende Ssenyonga Hamud. He resides at Busia zone in Wandegeya. He is self employed and an LC member in Busia zone RC III Kawempe ⁵ Division. He has been a member of the committee since 1990. He knows Mr. Katama. complaining that people had encroached know them. The complaint court from RII court. The complaint said that Katama had to compensate the 10 squatters on his land since he did not like them on his land. brought to the RC III by squatters led by Sserunjogi. They summoned all complaints Katama inclusive. They came and gave a list of squatters on the land. They talked to all the complaints. He He was one of the 15 complainants but merely sent his representative and that was confirmed by the LC of his area. came to their RCIII DW1 was on his land and he did not He came to their office The matter was knew Muluta. in 1995 and was and also a man of

Before they decided the matter the squatters left and went to the Chief Magistrates court Mengo. They went to Mengo complaining that they had not been given assistance from the LC 20 III. In May 1995 the Chief Magistrate wrote to them urging them to go and visit the sight and find out the magnitude of the destruction made on the sight if any. They visited the sight and checked the disputed land. They found there were 28 squatters Muluta inclusive. They also talked to Muluta but they stopped matter which had been referred to the Chief ²⁵ Magistrate to the latter. The report did not include Muluta's claim because were present. They told them not to include the the parties handling the at Mengo but they made a report which they submitted

A

matter in their report because the other party was willing to pay. He made the report and all the three committees signed the copy which they retained was signed by the vice chairman of their committee. The letter was tendered in court as Exhibit P.3. In $\mathsf{S}$ this handwritten report Mr. Muluta was mentioned on the list as number 30. In cross examination DW3 replied that he is Secretary in the LCIII court and he is Secretary for defence LC I Busia. He had never been a member of the RC III Kawempe Division. Thev had documents from RCI, RCII before they handled the same. $10$ Sometime they just receive judgment without court proceedings. They had no role in this matter apart from instructions they received from the Chief Magistrate to verify the properties damaged. The proceedings for RCI Kisalosalo zone Kyebando was marked as exhibit P.6. The decision was that all people in Katama's land were to be compensated equitably. The decision 15 encompasses all people. It does not mention individual names. He would blame Katama if he did not compensate Muluta for the properties he destroyed.

In re-examination DW6 testified that there was an appeal against the decision of RCI. It is true because RCII retried the $20$ case and gave its decision. Muluta was only represented and he refused any compensation at the sight. He did not want to be included in the names of those who were to be compensated. Muluta said he had an agreement of sale of the disputed land and that he had 2 million shillings to pay. He was told to produce 25 the sale agreement and he failed to do so. Mr. Katama was not there. He was represented by his son. So it could not be said that Katama was ready to compensate Muluta. But as an owner of

the land Katama was Muluta a squatter who refused ready to evict Mr. compensation. t/

At the commencement of the trial of this case the following issues were framed

- ⁵ (1) Whether the plaintiff is land. a customary tenant on - (2) Whether the destruction of the plaintiff's the land in issue was lawful. development on - (3) Whether there was breach of contract to purchase 10 land comprised in Block 212 Plot 82 Kyadondo and if so by whom. - (4) Whether the plaintiff is entitled to the remedies sought and what quantum. - As regards the first issue as to whether the plaintiff is 15 a customary tenant. In the case of Marko Matovu and two others vs. Mohammed Seviri and the Uganda Land Commission Court of Appeal Uganda 1979 HCB page 174 in holding 3. It was held that there is no definition of customary tenure but it is generally accepted even in that evidence of "bibanja" holding customary 20 rights, that customary tenure may be established by the cultivation only of seasonal crops for the grazing cattle and related construction of wells to water cattle that such are the 1969 Accordingly customary is not restricted to Bibanja Holding. ²⁵ rights the law protects under S.24 of the public land reform Act and section 3(1) of the land reform decree. - Whereas section ³ of the Land Reform Decree provides "The system of occupying public land under customary tenure may continue and no holder of customary tenure shall be determined on his holding except under terms and conditions imposed by the commission including the payment of compensation and approved by the Minister having regard to the zoning scheme if any, affecting the land so occupied and according to the public land Act 1969 shall be construed by subsection 24 thereof has been deleted there form."

Whereas section 5 of the same statute stipulates that:-"With effect from the commencement of this decree no person may occupy public land by customary tenure except with the permission in writing of the prescribed authority which permission shall not be unreasonably withheld."

$\sqrt{\frac{1}{2}}$ According to the evidence of PW1 he bought the land in question from one Batulamayo Baraturanga and paid him shillings 170 and gave the landlord kanzu of shillings 30 but later the defendant identified himself as the Registered proprietor of the suit premises and the plaintiff took steps to purchase the portion of land on which he held the customary tenure.

It was submitted on behalf of the defence that the plaintiff came into occupation of the land in 1987 but PW1 testified that he entered the land in 1969. He did not adduce any other evidence other than that of PW1 to prove that he was in occupation of the land in 1969. PW2 said he was manager of the plaintiff's buildings from 1986. He does not suggest that PW1 was in possession of the land in 1969. The counsel further submitted that on the other hand DW1 testified that when he

$10$

$15$

$20$

purchased the land and became the registered proprietor thereof the land was empty. And that this was confirmed by DW2 who carried out a survey of the land and tendered the report exhibit $D2 \times \sqrt{ }$

$\mathsf{S}$ Le But as I said earlier the plaintiff had purchased and acquired customary tenure thereof as per exhibits P1 and P2. I believe this old man therefore his failure to adduce any other evidence in support of his version is not in my humble opinion fatal to his case. It is true DW2 made the valuation report of $10$ the suit property. I read the report. On the item of development. He stated "The above piece of land which extends" to about $6\cancel{107}$ hectares is till undeveloped. There are some seasonal food crops which are being grown on the land for domestic consumption". In fact this finding strengthens the fact that there were some people on this land and supports the 15 decision. "Marko Matovu vs. Seviri (supra). That customary tenure may be established by the cultivation only of seasonal crops. $\frac{1}{2}$ I am of the view there was evidence that a customary tenant was on this land who for all intent and purpose ought to have seen the plaintiff $\overleftarrow{\xi}$ I am agreeable with the submission of $20$ the counsel for the plaintiff in that S.5 of the Land Reform Decree is irrelevant as far as it referred to fresh acquisition of customary tenure. The construction was the right of user of land from what has transpired above. I am of the view that issue No. 1 is in the affirmative.

The second issue is whether the destruction of the plaintiff development in the land in issue was lawful. Section 7 of the Land Reform Decree provides:-

conversion may not terminate any customary tenure without sufficient notice in writing being not less than six months addressed to the Holder of the tenure or his "A lessee on representative with a copy to the commission."

that plaintiff put up illegal structures in such premises in that Building plan was not approved by the Kampala City Council. There was evidence that the court brokers played 10 the destruction of the plaintiff' This destruction amounted to the stoppage of the plaintiff's customary holding. No notice months to terminate his customary tenure and no such notice was copied to the Uganda Land Commission as required by section 7 of 15 the Land Reform Decree. compensated. In fact the defendant did not follow the laid down procedure in terminating the customary The destruction of the plaintiff's premises was illegal. In fact the plaintiff could not have been a trespasser because the legal the plaintiff on land see . Yusufu Ssewanyana 1988-1990 HCB page 159. a key role in to fortify the defendants action. Uganda Constitution provides Evidence was given to the plaintiff. s houses. I mean notice of six Christopher Katongole vs The position was there was no court order produced in court Further Article 237(8) The tenure of PW1. procedure for evicting him had not been complied with not because had been found on the defendants was adduced by the defence The plaintiff was supposed to be in fact the

> and until parliament enacts an appropriate law under clause ⁹ of this Article the lawful or "Upon the coming into force of this constitution

leasehold shall enjoy security of occupancy on the land." bonafide occupants of mailo land freehold or

I 5 From what has transpired above this issue is in the negative. am of the view that by virtue of the provision of this Article the plaintiff could not just be pushed out of the said suit land.

The third issue was whether there was a breach of contract to purchase land comprised in Block 212 Plot 82 Kyadondo and if 10 so by whom.

The parties gave conflicting views as to what was the terms of the agreement for the purchase of the said land. The plaintiff testified that there were no terms as to when the price would be paid. It could be recalled the purchase price for 2.5 ¹⁵ acres was 3.5 million shillings and the plaintiff paid a deposit of 1.000.000/= shillings and had his properties destroyed before the balance was paid off. DW1 on the other hand claimed that the sale was fully agreed orally including the date of payment of the balance. Those terms were reduced in the form of Exhibit. In 20 fact this was a receipt dated 29th May 1992 "Received from Joseph Muluta shillings 1 million only, 3.5 million shillings per acre Transfer done after full settlement." purchasing 2.5 acres. to be

The court here has to consider whether there was a contract the terms of the contract. It would appear ²⁵ In Boye Steel NIC 1985 HCB p58. It was held that if the terms are Works Limited vs\_. unsettled or indefinite then there was no contract and here and what were transaction with no certain terms. there was ^a

Kaboyo Rep 1993 HCB at p 165 where it was held that a receipt of payment by respondent was acknowledgement of payment and did not amount to contract. The position is that ⁵ Exhibits P3 was not evidence of contract for the purchase of land by the plaintiff from the defendant but an acknowledgement of payment of one million shillings. I find that the terms of the agreement were uncertain and as such there could not be breach of contract by either party. However ^I am of the view the amount 10 of 10.000/= shillings is refundable. in Frank Rwakakindu vs. document acknowledging a instalment by the a mere

The last issue is whether the plaintiff is entitled to the remedies he claims.

In the question of general damages. ^I have found that the terms of the contract entered between the parties is uncertain. 15 What could appear as contract was a receipt EX. P.3 . no terms agreed upon when the balance of the purchase price would be paid, even if there was such oral agreement because of what followed the balance was not paid. ^I was not able to find that 20 to general damages'T^But the defendant and other acted in a high handled manner when they destroyed the structures put up by the and for wrongful eviction. damages of 10 million shillings. plaintiff and in fact the defendant was liable in trespass ^I would grant the plaintiff general there was a breach of contract which could entitle the plaintiff There were

As regards specific performance of the contract in fact ^I ²⁵ contract existed between the two. There was no contract to In fact a decree of specific performance is a decree issued by the court that the held that no enforce the defendant to perform.

defendant shall actually perform the promise he has made. This is a form of relief that purely equitable in origin. If there was such a contract in case I am mistaken the fundamental rule is therefore that specific performance will not be the remedy if there is a remedy at law. See Cheshire and Fifoot on law of <pre>contract Sixth Edition page 532 titled "specific performance."</pre>

And also in accordance with general principles that equity does nothing in vain. There are two particular types of contract of which specific performance will not be granted. That is contract for personal service and those in which performance cannot be ensured without constant superitandance of the court. It will be particularly impossible to force the defendant to land without constant deliver up the 3.5 acres of the superitandance by the court. The court could not force the defendant to receive the balance so even if there was such contract I would not make an order for specific performance. $\mathbf{I}$ decline to make such an order.

About special damages the plaintiff claimed that his houses three of them were demolished by the defendant servant/agents and or employer and claimed special damages of 50 million shillings $20$ but special damage must both be pleaded and strictly proved. Though the same have been pleaded but have not been strictly by say perhaps adducing evidence of the value of the properties by way valuation report or receipts of material used in constructing the said premises and the labour expenses incurred. I decline $25$ to make any award on this item.

So in the nutshell the plaintiff has proved his claim on a balance of probabilities. That the defendant trespassed on his

$10$

$\mathsf{S}$

premises and destroyed his houses and wrongfully evicted him.

- (a) He is awarded general damages of shillings 10 million. - (b) He is entitled to the refund of one million shillings, ⁵ ^I make an order for refund of this money to him. - (c) He is entitled to interest at court rate of the decretal sum from the date of delivery of this judgment till payment in full. - (d) The plaintiff is also awarded costs of this suit.

Judge I. Mukanza

31.10.1997

31.10,1997:

¹⁵ Mr. Richard Okalanga for the plaintiff present Both parties are present Counsel for defendant absent

Court:

Mr. Odongo court clerk

20 Judgment is read and signed I. Mukanz Judge

31.10.1997