[1985] UGHC 2

$\sqrt{19857}$ H. C. B. PAH AFRICAN INSURANCE CONTAIN LTD. v. UGAIDA AIRLINES CORPORATION & 2 ORS.

Pan African Insurance Company Ltd. v. Uganda Airlines Corporation & 2 Ors.

# High Court (Odoki J.): June 6th, 1985

(Civil Suit No. 63 of 1985)

# Civil Procedure - Plaintiff - entitlement to judgment - plaintiff entitled to judgment only in well stipulated situations.

Civil Procedure - preliminary point of law - triable issue where raises triable issues point to be tried on merit.

Tort - conversion - land - tort confined to chattels or goods it being an act of deliberate dealing in chattel in manner inconsistent with another's right to possession of it $\leftarrow$ land not chattel or goods so tort not applicable to land.

$55$

$\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$

The plaintiff sought for a declaration that it was still the rightful owner of the suit property.

The plaintiff purchased the suit premises in 1970. In 1978, the then Minister of Lands and Water Resources issued a Statutory Instrument No. 69 of 1978 which purported to compulsorily acquire the building. This was done under the Land Acquisition Act (Cap. 208)

In 1983 the 1st and 2nd defendants were entered on the plaintiffs certificate of title, five years after acquisition and long after the dispute had arisen. No compensation was given to the plaintiff and the plaintiff was still in occupation and management of the building. The government later vested the property in the 2nd defendant. An award of Shs. 11.5 million was made through the plaintiff's advocates but this was not accepted and no appeal was lodged to the High Court.

The plaintiff was still in occupation and collecting rent from the building.

At the commencement of the hearing of this suit counsel for the plaintiff raised a preliminary point of law. He submitted that the defendants had no defence to the plaintiff's claim, and therefore judgment should be entered against them

on all issues and that the case should then proceed against the 3rd defendant alone with a view to determining whether the property belonged to it by virtue of the Expropriated Properties Act No. of 1982 or whether the acquisition was illegal.

Counsel for the 2nd and 3rd defendants raised a separate preliminary point of law. He submitted that the plaintiff's: action was time-barred against the Attorney General by virtue of the Civil Procedure and Limitation (Miscellaneous Provisions) Act No. 20 of 1969. He further contended that the action was for unlawful and wrongful taking of property which was a tort of conversion. The action had therefore to be brought within 12 months.

# /19857 H. C. B. PAN APRICAN INSURANCE COMPANY LTD. $v_{\bullet}$

### UGANDA AIRLINES CORPORATION

HELD: 1. A plaintiff is entitled to judgment only in well stipulated situations namely; in default of entering appearance or defence, by courent of both parties, on admission of the plaintiff's claim by the defendant, after trial of issues of law, and after hearing the suit. In the present case, the plaintiff has not made the proper application to have the point of law set down for hearing nor has there been any hearing, that is to say, a trial of that point. Moreover the court may only dismiss the suit or make such other order, but not enter judgment in favour of the plaintiff.

- 2. The point of law raised by the plaintiff raised triable issues since the two defendants had raised arguable defences to the plaintiffs claim. Accordingly the preliminary point of law would be dismissed and the suit tried on morit. - 3. The tort of conversion was confined to chattels or goods it being an act of deliberate dealing with a chartel in a manner inconsistent with another's right to his possession or his right to the possession of it. Land was not a chattel or goods which could be converted and therefore the tort of conversion did not apply to actions on land. This was an action for recovery of land since the plaintiff sought a declaration that it was still the legal owner of the property and not the present legal owners. The limitation poriod applicable was therefore 12 years. in accordance with Limitation Act and the plaintiff's action gainst the Attorney General was not statutebarred.

Both preliminary points dismissed with costs in the cause. Suit to be heard on merit.

#### Per Curiam:

"Before $\frac{1}{\text{take}}$ leave of this matter $\frac{1}{\text{should}}$ like to make a short comment. The subject matter of this suit is a valuable building in the heart of Kampala. The property belongs to an Insurance Company, the plaintiff. It was compulsorily acquired by Government in the public interest for public purposes. It was subsequently purchased by a public body. The suit raises substantial questions of law of current and public importance in the socio-economic development of this country. While conceding that saving the parties great expenses and saving the time of the court are proper considerations to take into account on ground of expedience it is my humble view that public policy in the due administration of justice requires that a suit like this one be heard on the merits so that the issues it raises can be fully ventilated by the parties and finally and authoritatively pronounced upon by the court."

#### $/19857$ H. C. B. PAN AFRICAN DISURANCE COMPANY LTD.

UGANDA AIRLINES CORPORATION

## Legislation Considered:

Civil Procedure and Limitation (Miscellaneous Provisions) Act No. 20 of 1969

Civil Procedure Rules (S. I 65 - 3) 0.1 rr. $10(2)$

17 $0.6 r. 27$ $0.9$ rr 4 and 6 $0.11$ rr.1,4 and 5 0.13 $\text{rr}$ . 2, 6 and 7 $0.22$ r. 6 0.33 $r$ .3

$-55$

$\sim 10^{-10}$

$\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$

Expropriated Properties Act No. 9 of 1982

Land Acquisition Act (Cap. 208

Limitation Act $(Cap. 70)$

## Cases cited:

1. Airport Services v. Attorney General 59597 B. A. 53

2. Lutaya v. Gandesha & Anor. H. C. C. S. No. 860 of 1982

3. Nakabiri v. Nasaka District Grouers Union H. C. C. S. No. 853 of 1983

## Other materials Considered:

Clerk and Lindsell on Torts 13th Edn. p. 1079

$(S. B. B. )$