[2003] UGHC 116

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### CIVIL SUIT NO. 1309 OF 1998

PATRICK SEMAKULA :::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

-versus-

STEVENKAZIRO ::::::::::::::::::::::::::::::::::::::: DEFENDANT

#### **THE HON. THE PRINCIPAL JUDGE - MR. JUSTICE J. H. NTABGOBA**

### **JUDGMENT**

The land comprised in Kyadondo Freehold Register Volume 350 Folio 5 also known as Kyadondo Block 204, Plot 487, Kawempe, is registered in the names of Patrick Semakula who is the plaintiff in this case. He became registered thereof on 11.8.1993. Until that date the land (which I will herein refer to as the suit property) was registered in the names of an Asian called FATMABAI ABDULHAMID MOHAMED HIRJI in his capacity as the Administrator of the estate of one ABDULHAMID MOHAMED HIRJ (deceased). The Asian registered owner repossessed the suit property under the Expropriated Properties Act, 1982. He residing outside Uganda, by power of Attorney, appointed M/S. SUA LIMITED to sell the suit property. M/S. SUA LIMITED sold the property to the plaintiff through M/S. Kasirye & Co, Advocates on 29th December 1997. The above facts are supported by a Certificate of Title, a power of Attorney and an agreement of sale. The suit claims that the defendant trespassed on the suit property and erected thereon an illegal structure. It seeks orders that:-

**i**

- (a) the defendant be evicted from the suit property and that the illegal structures be demolished. - (b) general damages be warded to the plaintiff and - (c) costs ofthe suit.

The plaintiff claims that when he bought the suit property it was vacant and that it was still vacant when it was registered in his names. He says that sometime in August/September, 1998, one Annet Nantumbwe the defendant's predecessor trespassed onto his (plaintiffs) land and commenced the erection of an illegal structure thereon. The plaintiffsays that he protested the action of Nantumbwe and complained in writing to the relevant authorities but to no avail. The plaintiff complains against the defendant for continuing with the trespass and to develop the illegal structures commenced by Annet Nantumbwe, despite the plaintiffs protestations. The plaintiff complains that in perpetuating the illegal acts, the defendant was enlisting the protection of one Col. Mukasa whom the defendant claims is his uncle.

Hajji Ahmed Sebuliba, the witness for the plaintiff testified that he was operations Manager of Sua Limited. He says that he knows Plot No. 487 which he says is one ofthe Plots curved out ofBlock 204. He says that it was not occupied.; that it was a vacant land which got an independent title after Block 204 had been surveyed by one Buwule and subdivided into plots. The witness denies knowledge of Annet Nantumbwe and Steven Kaziro, the defendant. He recalls the plaintiff complaining that the fencing of the suit property had been removed. The witness advised the plaintiff to go and complain to the authorities. He says that they

investigated and found that some people had already deposited on the suit property heaps of sand, blocks and had started putting up a structure. He did not find out who were building on the suit property.

The other plaintiffs witness was Samson Kyeswa who appeared in Court to testify as PW.3. He is a businessman and was Chairman, L. C.l in Kalule Zone where the suit property is situate. He knows the former Asian owner of the suit property who when he returned to Uganda, he repossessed his land where he found a lot ofsquatters. Fie says that when the Asian's land was surveyed some vacant subdivisions were curved out. "There were plots occupied and vacant plots," he says. He says that plot No. 487 was empty, at the time of the subdivision, which he estimates was in 1997/1998. "It was sold as a vacant plot.," he adds; and that it was bought by Patrick Semakula, the plaintiff.

"After the plot was sold to Patrick Semakula the family of Mr. Kaziro Steven denied this was part oftheir land. The wrangle then started between the buyer and Kaziro who claimed it as a kibanja. Mr. Semakula came to me and told me that his plot was being developed. I told him to go back to the agent who sold him the Plot."

He says that Annet Nantumbwe was Sister to Steven Kaziro.

According to the witness, Annet Nantumbwe bought the Kibanja in the eighties. She bought it from the widow ofthe late Kimbowa.

In cross-examination, he said:-

"I know the boundaries of this land. I knew the earlier boundaries to Nantumbwe's land. This plot in dispute was in that land. Her land was subdivided in 2 plots. The plot in dispute is one of them-."

In his defence, the defendant stated that he has no proprietory interest in the suit property and that it was not bequeathed to him by his sister, the late Nantumbwe. Nantumbwe left the property to her old mother and her (Nantumbwe's) child. He said he had no Letters of Administration over the state ofNantumbwe. He states

"Eric Mukasa is my uncle. He is a soldier. He is a Colonel. The deceased is the one who built the house as she was alive. I am not sure if the developments had building plans approved by Kampala City Council. I have never seen the approved plans. I know that the land in dispute at one time belonged to an Asian."

There were framed and agreed issue before Egonda-Ntende, J, from whom I inherited this case when he left for Kosovo. The following were the issues:-

- 1. Whether the plaintiff lawfully acquired the land at Kawempe comprised in Block 204 Plot 487. - 2. Whether the defendant is a customary tenant on the said land. - 3. What remedies are available to the plaintiff.

On the first issue, the documentary evidence overwhelmingly shows that the plaintiff obtained good title. First of all, the registered owner, FATMBAI ABDULHAMID MOHAMED HIRJI, properly repossessed

the suit property. He, by power of attorney, authorised, though in general terms, M/S. SUA LIMITED to sale all his property which must have included the suit property. SUA LTD. employed M/S. Kasirye & Co. Advocates to sell the suit property and this, the Advocates perfected by signing, in favour ofthe plaintiff, the agreement ofsale (Exh. PL).

At this juncture, I must dismiss the argument that because the Land Office document may have contained a different plot number would overrule the Agreement of Sale. The "Application for Consent Transfer of Sublease Public Land." Shows the plot No. as 478 but what matters is the Agreement of Sale and the Certificate of Title. The answer to the first issue is that yes the plaintifflawfully acquired the suit property.

As for the second issue, it seems to me that Annet Nantumbwe purchased the kibanja on the suit property during the time of appropriation of the suit property. The Expropriated Properties Act, nullifies all the dealings in the land subject thereof. The purchase of the kibanja in the eighties was therefore a nullity.

Secondly, the defendant Kaziro, had no locus in developing the property ofAnnet Nantumbwe unless he was the inheritor by will ofthe kibanja or unless he was the administrator of the estate of Annet Nantumbwe, including the suit property. Thirdly, the structure (i.e. the house) is an illegal structure in that it had no approved plans from the Kampala City Council. My ruling on the second issue is that the defendant cannot describe himself as a customary tenant on the suit property first because there is no nexus between the suit property and the defendant and secondly because even Annet Nantumbwe could not claim to be a bona fide customary tenant when her occupation of the plot is doubtful in the

sense that she occupied it during the time the suit property was under a disability in the sense that the dealing in the property was nullified by the Expropriated Properties Act. Finally, even if Annet Nantumbwe were to claim to be a bona fide customary tenant, the plot in question was vacant. I think to succeed as a customary tenant the claimant must show he or she was in occupation. The second issue is answered in the negative. I now pass on to the last issue which is "what remedies are available to the plaintiff."

I do not hesitate to grant an eviction order against the defendant, in which case, the plaintiff will be entitled to demolish the illegal building. I will now consider the prayer for general damages but it goes without saying that the defendant must pay costs ofthis suit and I so order.

As to the quantum of general damages claimed by the plaintiff, his Counsel prays that the defendant has deprived the plaintiff of the use of the suit property as a factory for 5 years. He wants an award of Shs. 400,000/= per month for the period, of ⁵ years. It is true that in his testimony the plaintiffsated that" I came to know ofthis land when I was looking for land to build a factory."

The piece of the evidence of the plaintiff which tends to prove general damages is in his following words:-

(a) "After acquiring my title, I fenced the land with barbed wire and poles and delivered sand on it. After this Mr. Kaziro brought me a soldier who told me that if I needed life I should not say anything about this land. The names ofthe soldier were Eric Mukasa."

- (b) "They removed the fence and they started to build, day and night. I mean Kaziro and the soldier he had brought—." - (c) "When they removed my fence, I went to Kityo & Co. Advocates who wrote to them a letter asking them to desist from developing the land as it was not their land----- . This is the letter written to Annet Nantumbwe. She is ^a sister of Kaziro—(The letter was tendered as Exhibit P2). - (d) "Ever since I acquired that land, I have never been able to do what I planned to do because they constructed houses thereon." - (e) "I ask the Court to order the defendants to remove their buildings, vacate the land and compensate me for the period they have kept me off my land. I also want to be compensated for the barbed wire and sand—."

Needless to say, the plaintiff may as well have planned to build a factory on the suit property. However, he could have adduced any plan for that factory approved by Kampala City Council. He produced none, but suffice it to say, he must have purchased the land for a project, even if such project may not have been the building of the factory. He certainly is entitled to compensation not only for the building materials like sand, poles and barbed wire but also for the non-utilization of the suit property for the period of 5 years. I do not know from what source Counsel for the plaintiff got the sum of Shs. 400,000/=. Is this the rental he would have received if the factory had been built? Was the factory for personal use or renting? Ifit was for personal use, is the figure of Shs. 400,000/= per month his expected income from the use of the factory? A little more evidence was necessary of Shs. 400,000/= per month. Doing the best I can, however, and taking into account the imponderables I would award to the plaintiff a sum of Shs. 150,000/= per month for, in any case, it is

one thing to buy land for building a factory and yet another thing to build the factory.

In the result, the defendant will pay to the plaintiff a total sum of Shs. (150,000 X 12 X 5)/= which is Shs. 150,000/= X 60 = 9,000,000/= (Nine million shillings only). This means that in addition to the order for eviction and demolition of the illegal structure, the plaintiff is awarded Shs. 9,000,000/= (Nine million shillings) plus the costs ofthe suit.

**J. H. Ntabgoba PRINCIPAL JUDGE**