[1989] UGSC 12

THE SUPREME COURT OF UGANDA

AT MENGO

$R$ $\oplus$ $S$ $P$ $S$

# CIVIL APPEAL NO. # OF 1988

| | Ind a play | |----------|--------------------| | | SUPREME COURT LIBR | | | ACC. No- | | $\Delta$ | YEAR. |

WAMBUZI, C. J., MANYINDO, D. C. J., ODOKI, J. S. C) (CORAM:

BETWEEN

SOMALI DEMOCRATIC REPUBLIC ::::::::::::::::: APPELLANT

$A$ $N$ $D$

ANOOP SUNDERIAL TREON :::::::::::::::::::::: RESPONDENT

(Appeal from the Judgement of the High Court of Uganda at Kampala Mr. Justice W. K. M Kityo dated $20/10/88$ in H. C. C. S No. $976/87$ )

### JUDGEMENT OF WAMBUZI C. J.

In 1975 the appeallant, the Somali Democratic Republo. entered into an agreement with the respondent's predecessor in title, Miss Treon, for the purchase by the appellant of a house in Kampala on Plot No. 18, Upper Kololo Terrace for use by its mission. The agreed purchase price of Shs. 1.2 million was paid to Miss Treon in 1976 and she signed a transfer of the property in favour of the appellant. For some reason the transfer instrument was not registered.

It so happened that the same house had previously been occupied by the Ministry of Commerce under the false assumption that the house was acandoned property and therefore was under the management of the Custodian Board. When, in 1973, the appellant established a mission in Uganda and requested the Uganda Government to find suitable premises for occupation by its mission the property in question was vacated

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SUPREME COURT\*L by the Ministry of Commerce and was leased to the appe ACE^t No by the Custodian Board. Later it was discovered that the ARoperty did not vest in the Custodian Board but belonged to Miss Treon. In 1974 the Ministry of Commerce advised the appellant to negotiate the rent with Miss Treon and later the sale of the property was negotiated.

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After the fall of Amin in 1979 Miss Treon through her advocates purposted to get out of the deal and returned half of the purchase price to the appellant alleging that she was induced to surrender the property through duress and undue influence on the part of Idi Amin, the then President of the Rpublic of Uganda, with the connivance of the Ambassador of the appellant. The appellant refused to vacate and hand over the premises maintaining that it had bought the property. The respondent filed an action in the High Court against the appellant for trespass. The High Court found for the respondent and the appelllant has now appealed to this court against the decision of the High Court.

The parties did not frame any issues but the learned trial Judge dealt with the matter as follows,

> "I now turn and deal in full with the resultant issue arising out of the pleadings on both sides. There is no dispute as to the plaintiff's original entitlement to the suit property i.e. the claimed ownership based upon the testimentary disposition in his favour, under the will of hislate cousion Mrs. Kamma Bahawalmal Treon; the current registered owner of the suit property, There is also a very clear evidence, establishing the fact that the defendants participated in what appears to be the commercial negotiations with the former deceased owners with the clear intention or view of purchasing the suit property

> > $. . . . . / 3 . . .$

interest as required by the Registration of Titles Act - Laws of Uganda Cap 205 at page 3602 read together with $S.4$ - of Registration of Documents Act, Laws of Uganda Cap 80 at page 1253, and yet the defendant was eligible to effectively hold land under the provi sions of the Diplomatic Property and Concular Convention Act, was mentioned earlier mead together with two again mentioned Statutory Instruments also made under it.

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$3.$ That the sale was also voidable because it was not free or voluntary but was characterised with the apprehension of fear, in the mind of the seller that refusal to do so, was bound to result her Mysterious disappearance, bacause such refusal would amount to $\mathtt{displeasing}$ the highest authority in the land at that time.

I accordingly enter judgement for the plaintiff ..........."

Language apart, it would appear that the learned trial Judge held that the contract of sale was voidable for two reasons. First that the contract was incomplete for lack of registration of the transfer instrument and secondly that the contract was voidable because it was not free or voluntary on the part of the seller but was due to fear for her life if she did not effect the sale. These findings have been attacked by the appellant on a number of grounds

The first ground of appeal is to the effect that the learned trial Judge erred in law in ignoring and completely failing to consider, assess and weigh the whole evidence given on behalf of the appellant. In arguing this ground Mr. Kateera for the appellant referred to the following evidence adduced for the appellant which counsel submitted,

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and that those negotiations were finally concluded with the purported written pur-<br>chase agreement of property but, strangely, there is no further evidence, as expected, to show or establish, the fact that any transfer instrument in favour of the defendant, in respect of the suit property purchased was ever registered; therefore. the absence of that necessary step leads to the apparent outstanding issues as shown below:-

- $1.$ of whether the deceased owner and the defendant successfully concluded between them a valid or otherwise a voidable contract of the sale of the suit property which is in issue presently. - 2. of whether, the greement of sale which they concluded was tainted with some fatak irregularities, such as frauds or duress or both or any other irregularities or combination of them thereby rendering such a contract to be exposed to the danger of being declared void as when the feared threats abates; and. - 3. of whether the plaintiff is entitled to the reliefs which he is seeking in this suit."

The learned trial Judge then summarised the effect of the evidence on record indicating what evidence he believed and asnswered the first two issues in the following manner,

> "Having therefore considered the overwhelming evidence which is reproduced in the proceeding paragraphs of this judgement, I have no doubt in my mind, that the answer to the issues which were earlier framed are as below:-

- That there was an attempted though $1.$ uncompleted agreement of the sale of the property in issue, that the said agreement was between the deceased registered owner and the defendant. - 2. That the sale agreement which was adduced in the evidence was uncompleted and voidable because the defendant, as the purchaser did not take steps to register his

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$\cdot$ . $\bullet$

$\ldots \ldots / 4 \ldots$

"Your Excellency,

# RE: 18 UPPER KOLOLO TERRACE

We acknowledge receipt of your letter dated 19th November, 1976 forwarding to me cheque number 055053 drawn on Uganda Commercial Bank, Parliament Avenue, Kampala in the sum of 1.2 million shillings being the purchase money for Plot No. 18 Upper Terrace belonging to Miss Treon. I wish to observe in passing, however, that

although 1 agreed to be the channel of communication at the request of both of you and Miss Trean, the cheque should have been made in the name of Miss Treon and merely forwarded to me for onward transmission. This as it may, as the cheque is crossed generally I am endorsing it for the account of Miss Treon.

I thank you very much for bringing this matter to a good end. Your co-operation has been greatly appreciated."

3. The evidence of Mohamed Abdalla Kadir Warsame, the Charge d. Affairs of the Somali Republic, to the effect that Miss Treon was a willing seller and that her counsel was anxious to conclude the deal was shown by two letters from Miss Treon's counsel both of which were addressed to the Attorney General. The letters were Exhibits D10 and D11. Exhibit D10 is dated 3rd May, 1976 and it is in the following terms,

"Dear Sir,

## RE: PLOT NO. 18 UPPER KOLOLO TERRACE

We refer to the above property which is now being occupied by the Somali Embassy and who had showed some interest in purchasing same.

As such a long time has passed without getting any firm deal from the Somali Embassy it is safe to assume that the Embassy is no longer interested or is unable to agree to pay the price of Shs. 1.2 million.

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the learned trial Judge failed to consider and which that the respondent was a free and willing seller.

| SUPREME COURT LIBRARY IN | | |--------------------------|--| | showed | | | ACC. No. | | | <b>TEAR</b><br>$l$ ora | |

A letter by Miss Treon to the Attorney General

dated 29th August, 1975 (Exhibit D.7) in the

following terms,

"Dear Sir,

$\mathbf{A}^{\prime}$

#### PLOT 18 UPPER KOLOLO TERRACE $R\Xi$ :

THank you for your letter of 27th instant received last evening, asking my views on the offer given in the letter, dated 14th August, 1975, by H. E. the Ambassador of the Somali Democratic Republic in Kampala.

Well, Sir, in my letter of 21st March, 1975 addressed to you, I agreed to any value as would be assessed by the Chief Government valuer. The first valuation was 1.2 million shillings given by the office of Chief Government Valuer. From the same office again figure of Shs. 800,000/- was given as the value of the house. Well, the difference between the two figures is so big that I as a lay person I would humbly request the Chief Government Valuers to give some explanation as to the basis for valuation and to confirm which of the two figures is the correct one.

Secondly, the Somali Embassy stated sometime back that they had a valuation done by a prominent firm of valuers. I requested and still request the Somali Embassy to let us have this up-to-date valuation by the said firm of valuers. This will greatly assist us to reach an early solution."

$2.$

Aletter addressed by the Attorney General to H. E. the Somali Ambassador dated 22nd November, 1976 (Exhibit D8) in the following terms,

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"She told me that she wanted to sell the house to another Embassy, it is understandsble because those days all Asians were in difficulty. I became interested to buy it. We started bargaining, but first she asked Shs. 700,000/- (1974). We offered Shs. 600,000/- after consulting the valuers, I remember a firm of Katuramu assesed that value.

I could finalise the deal but it .... to be confirmed by Government, but it took some time before I got it, she increased the price by giving to the Government Valuer, she demanded for Shs. 1.2 million which I considered to be very expensive. we went to the same valuer who returned with the value of Shs. $800,000/-$

I came to know that there were other buyers and therefore there was competition and I agreed to buy at Shs. 1.2 million. We paid the price by cheque through the Ministry of Justice and Attorney General.

We had to contact her through Ministry of Justice because normally we have to act through the Government. It is not proper to deal with citizen directly."

Mr. Kateera submitted that as the learned trial Judge did not comment on all this evidence, he did not review it and that in these circumstances the appellant is entitled to assume that the learned trial Judge did not consider that evidence and that had he considered and properly assessed all that evidence he would have come to the conclusion that the sale was voluntary on the part of Miss Treon. Learned counsel relied on a number of authorities,

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The main purpose of writing this letter is to request you to assist us by arranging with the Somali Embassy for a suitable date and time when we can take in to the house a representative of another Embassy which is interested in purchasing the property.

We feel that the Somali Embassy has taken too long to decide this matter. This state of affairs cannot be allowed to go on to the detriment of our client's interest. We may sogn have to refer the matter to the Foreign office."

Exhibi D11 is dated 20th October, 1975 and is in the following terms,

"Dear Sirs.

# RE: PLOT 18 UPPER KOLOLO TERRACE

We are acting for our client K. R. Treon.

It would appear that the Somali Ambassador has not replied to your letter Ref. A. G. 67 of 4th September, 1975 or if he has not been informed of the Ambassador's reaction.

Our client is anxious to conclude the deal with the Somali Embassy at the price of Shs. 1.2 million. We are therefore instructed to propose that the Hon. Ambassador be and is hereby given a period of ten (19) days from the date hereof in which to inform us of his final decision. Thereafter the house shall be offered to the other interested buyers and the Hon. Ambassador is kindly informed that with prior arrangement with him be taking prospective buyers to view the property".

$4.$ The evidence of Hasi Abdalla Farah a former Ambassador of the Somali Democratic Republic in Uganda (D. W.2) which was to the effect that it was Miss Treon who had proposed to him to buy the house even before he came to $\text{U}\pi\text{and}a$ to take up his duties. He had been approached in Nairobi, Kenya by Miss Treon through her brother, the witness went on,

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According to the evidence from $+n-1$ same witness, the threat was apprehended because the head of state at that time, named as General Idi Amin Dada, was widely known to be notorious for causing mysterious disappearance of people who displeased him. He is shown in the evidence to have been interested and negotiating the sale to the defendant purchaser and the sale to be carried out by the registered owner or otherwise the seller - see Exhibit P11 in the last paragraph which reads:-

> 'H. E. the President chose this very property for your occupation and therefore the government has interest in its settling this matter.

I have further more believed the evidence by PW2 to the effect that on behalf of the owner that the witness made a formal demand for both the rent due and for the furniture which had been left in the house, but that neither of these two demands was met by the defendant. The owner was instead summoned up by the then President and who harshly urgued her to sell the property to the defendant. In this regard, I have particularly noted the evidence of PW2 to the effect that she appeared to the witness who was indeed was her legal adviser and testified in thse proceedings to have appeared to that witness as depressed and complained to the same witness, about the harshness to which she had been subjected by the President and the fact that she had coerced to agreed to sale the property. The plaintiff has also independently repeated in his evidence, the corroborating information of ill treatment to which his cousin was subjected by the President Idi Amin and which she told him during her life time on the regular visits to U. K. ......

That she was therefore compelled to fear to exercise her free choice to refuse or agree to the sale."

SUPREME COURT LIBRARY ACC. No. ----YEAR.................................... | | SUPREME COURT LIBRARY | |----------------------------------------------------------|------------------------------------------------------------| | | Benmax vs. Austin Motor Co. Ltd (1955) All ER 326 CG NS. G. | | (1985) 2 All E. R 225 at 227, and Re. (A minor) $19968-4$ | | | All ER $417.$ | |

From the passage of the learned trial Judge's judgement quoted earlier, it appears that although he did not set down the evidence of both parties he must have considered the evidence at that stage for the purpose of framing the three issues. After formulating the issues the learned trial judge went on.

> 4I will start with the issue No. 1. It is important to note to the following important or salient features in the evidence adduced by the plaintiff, namely the evidence to the effect that although the registered owner of the suit propert_j is by now dead yet it is a fact that, during her life time and with the assistance of lawyers she evidently participated in the negotiations which appears to have been gimed at conducting an agreement of sale on her part, and of the purchase on the defendant's part, of the suit property i.e. the contract being between the owner and the purchaser see Exhibit DIX.

> It should also be carefully noted, that there is the evidence from the lawyer (PW2) who states that all along, he was assisting her, in conducting those negotiations, the most important feature being, to the effect, the the sale negotiations were conducted under the threats, or fears of the possibility of losing her life, if the deal for the sale did not go in favour of the defendant.

> > $...$ /10.

terms and only mentioned the evidence which he believed in reaching his conclusion. The relevant evidence for the respondent was that of Sunderlal Treon (PW1), of Kayondo **IYEAR** (PW2) and Exhibit P11. It would have been preferable for the learned trial Judge to expressly reject the evidence of the appellant but as I have already said his failure to do so does not mean that the evidence was not considered.

Be that as it may, it is well established that it is the duty of a flirst appellate court to review the evidence and to come to its own conclusion of course bearing in mind that it has not seen the witnesses.

The main witness on the question of duress on the appellants's part was Hasi Abdalla Farah, the former Ambassador of the appellant whose main testimony has already been outlined in this judgement. He claimed that he was approached in Nairobi in connection with the purchase of the property. I notise that this fact was not put to Treon or to Kayondo in cross examination.

Secondly, Farah said in his evidence that Treon first asked for Shs. 700,000/- for the house which she later increased to 1.2 million shillings. There is evidence however that Treon was querying the Attorney General as to why the Government Valuer should have two widely differing figures that is to say 800,000- and 1.2 million inrespect of the same property (see Exhibit D7).

There is evidence that the Attorney General wrote to the appellant (see Exhibit P4 below) in connection with the same matter which indicates that Farah had the Government Valuers report before Treon saw it. Exhibits P2 and P6

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With due respect to the language of the learned trial Judge it appears from his judgement that after considering the pleadings and the evidence he framed the issues. He then went on to answer the issues commenting only on the evidence which he had accepted. The implication is that he must have rejected any evidence contrary to his findings. In these circumstances I am unable to say that his failure to say so expressly means that he did not consider or even weigh that evidence. The first ground of appeal must fail.

The second ground of appeal is that the learned trial Judge erred in law in holding that the sale of the property in question was done under duress and or coercion. Mr. Kateera argued that there was no justification for the learned trial Judge to hold that there was duress by Amin. That the passage in Exhibit D11 quoted by the learned trial Judge was not evidence of coercion. Counsel argued that both Sunderlal Treon (PW1) who testified that she knew Amin as a fearful man and that her aunt (Miss Treon) informed her that she was under pressure to sell the property and Mr. Kayondo (PW2) were not testifying from their own knowledge, but from information by a third party not available for cross examination. Learned counsel argued that the learned trial $\mathtt{Jud}_\mathcal{R}e$ in dealing with the evidence of these two witnesses did not take the extra caution required. Otherwise learned counsel submitted there was no direct evidence of duress. He relied on the authority of R $v$ . Blastland 1985 L. R. C. (Crim) 234 at page 239.

As already remarked in this judgement, the learned trial Judge referred to the case of both parties in general

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agreeable and will accept the price as assessed by the Chief Government Valuer.

You told me over the line that when the cheque is written out you would prefer to send it to me rather than to Miss K. B. Treon. Miss K. B. Treon has no objection to the arrangement.

Miss K. B. Treon raised the subject of the personal asswts in the house which she said do not form part of the houses. She further said that some of these she attaches high sentimental value and she would like to relive them. You informed me that this should be the subject of the separate negotiation between you and Miss Treon. Your view on the point fully justified and Miss Treon agreed that this should be so".

Quite clearly according to this letter the appellant and the President of the Republic of Uganda had reached an agreement that the appellant would have full use of the property in question, either as a paying tenant or as an absolute owner after purchase. It appears Miss Treon's agreement was sought subsquent to this agreement.

Exhibit P3 is a letter dated 27th March, 1975 addressed to the Government Valuer by the Attorney General to the effect that the Embassy of the Somali Democratic Republic was desirous of purchasing the property in question and that "the arrangement was made by H. E. the President" and the Attorney General was instructed to handle the matter. In that letter the Attorney General instructed the Government Valuer to value the property.

Exhibit P2 is a letter dated 26th June, 1975 addressed to the Charge de Affairs of the appellant. The letter is in the following terms,

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below indicate that the Attorney General played an active role in ascertaining the purchase price. Of course I did not see Farah testify but these are matters which throw some doubt on the accurancy or even truthfulness of Farah's evidence. There is evidence that Amin chose the property which would be leased or bought from Treon (see Exhibit P4). There is also the question of the role played by the Attorney General in the transaction. Exhibit $P^4$ is a letter dated 20th February, 1975 addressed to Farah by the Attorney General in the following terms,

## "Your Excellency,

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## PLOT NO. 18 UPPER KOLOLO TERRACE MISS K. B TREON.

You will recall my conversation with you a week ago on the above subject. I conveyed the view of His Excellency the President of the Republic of Uganda to the effect that as this property is legally owned by Miss K. B Treon, the rent payable for it should be paid direct to Miss K. B Treon or to someone else on her directive. Further, that if the Embassy of the Democratic Republic of Somali wishes to buy the property outright there is no hinderance to this. The proceeds of the purchase shall ultimately be paid to Miss K. B. Treon.

Since speaking to you I spoke to Miss K. B. Treon who has no objection to the mutual agreement reached between Your Excellency's Government and His Excellency the President of the Republic of Uganda that you have the full use of the plot either as a paying tenant or as an absolute owner after the purchase. You informed me on telephone that you were vigorously pursuing the purchase preposition and that the Chief Government Valuer has already made available to you his assessment of the price. Although Miss K. B. Treon has not had access to the valuation she is fully

$. . . . . . . / 14.$

Valuation being a technical matter<br>Government policy and procedure has alway SUPREME COURT LIBRA been that the value of any property should be assessed by those with the professional CC. No competance to do so. Hence the instructionEAR to the Government Valuer that he gives us a valuation. When we are not satisfied as to the validity of such valuation we do endeavour to obtain another valuation from another valuer of proper professional standing, compare the two and then come to a proper figure which we take to be the proper price for the property.

As you know the background to this case the Government involvement in an otherwise private affair came about because in furtherance of our brotherly and very cordial relationship. H. E. the president chose this very property for your occupation and therefore the Government has an interest to settle this matter. It would be unfair if the Government backed out and left your fraternal Embassy at the mercy of the property owners.

I am copying this letter to Messrs Hunter and Greig Advocates whom you say were handling the matter on your behalf."

Quite clearly the Attorney General was taking part in the negotiation of the purchase price for the property. Exhibit P6 is another letter dated 9th November, addressed to the Ambassador of the appellant in the following terms,

"Your Excellency,

PLOT NO. 18 UPPER KOLOLO TERRACE, KAMPALA

Thank you for your letter Ref. SSU/P/ 5/16 dated 4th November, 1975 in reply to mine of 21st October, 1975 in which I stated that it had been verified that the figure of Shs. 800,000/- was incorrect. I further informed you that in a note addressed to me by the Ministry of Lands and Water Resources, Supported by documents

"Your Excellency,

$\sim$ $\bullet$

## PLOT NO. 18 UPPER KOLOLO TERRACE MISS K. B. TREON.

Please refer to my letter Ref. A. G $67/3$ dated 12th June, 1975. Subsquent to that I received the valuation report dated 9th June, 1975 and copy of which I sent to you. You informed me on the telephone that you were not happy with the value placed on the property, as it appeared to you to be rather excessive, regard being had to the size and the nature of the property. Of course I could not pass judgement first because I had no idea of how the property looks like, and, second because this is a professional matter for which one requires technical knowledge so as to come to a proper figure. As such, it could best be left in the hands of the professional valuers. Nevertheless, the valuation report was not as explicit as valuation reports I am used to. While numbers of the rooms were given there were some relevant details which were not included in the report and which a client would be interested in. I am talking about such details as the building area of the plot, the size of every room, construction materials, and such like which are important in a proper determination of the value of any property. As, of course, you are an Embassy, you would probably not be interested to know about the ground rent and the municipal rates payable; otherwise all this matters in the construction of a valuation report. $\overline{B}$ Y copy of this letter I am requesting the Chief Government Valuer to submit these details for our appreciation of the value of the property.

You mentioned that you had in your hands a valuation report submitted by Messrs Katuramu & Company Valuers. To facilitate a speedier solution I would kindly request you to let me have a copy of this report, to compare the date used with the report made by the Chief Government Valuer. I believe that Messrs Katuramu & Company's report was made more or less at the same time as that of the Chief Government Valuer, if not I suggest that Messrs Katuramu & Co. should submit an up-to-date valuation report and sufficiently detailed to enable us to make proper comparison.

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indicates that the purchase price was by a cheque made out to the Attorney General although ultimately it was endorsed to Treon.

I have not been able to find any local authority on duress. However, Chitty on Contracts 25th Edition has this to say at paragraph 481,

> "It was at one time common to treat the legal rules relating to duress (and frequently also the equitable rules relating to undue influence) as resting on the absence of consent. A party who was subject to duress, or even undue influence, was often said to have had his will 'overborne' so that he was incapable of making a free choice, or even of acting voluntarily. Most of the older cases cited in this chapter rest on this assumption; and even more modern decisions use the same kind of language. But the basis of the law relating to these topics requires reconsideration in light of the speeches in the House of Lords in Lynch vs. D. P. P. of Northern Ire-This case was concerned with land. the defence of duress in the criminal law, and there are no doubt important differences between the civil and criminal law on what can constitute duress; but the case contains by far the most extensive analysis of the juridical nature of duress in the law reports, and on the question, there appears to be no difference between the criminal and civil law ........ All five members of the House of Lords rejected the notion that duress deprives a person of his free choice, or makes his acts non-voluntarily. Duress does not 'over bear' the will, not destroy it; it 'deflects' it. Durcss does not literaly deprive the person affected of all choice, it leaves him with a choice between evils. A person acting under duress intends to do what he does; butdoes so un-<br>willingly .......... There is still

> > $...$ /19..

$\cdot$

giving the correct formular and procedure of valuation, the correct figure was given as Shs. 1.2 million. You will further recall that this was the first figure communicated to you. So the letter you replied does not refer to the figure of Shs. 800,000/- which is incorrect, but Shs. 1.2 million which the professional valuers say is the correct one.

One thing appears to have come out clearly in the correspondence from both Your Excellency and Miss Treon that is, that you take the valuation by the Government Valuer as the basis for the transaction. As far as Miss Treon is concerned, her acceptance of this is unqualified. You however, appear to desire a further negotiation. Should it be of the view that the valuation given by the Government valuer is not based upon proper formular, I would still advise as I did before that we meet as you rejuested us (myself and the Minister of Land and Water Resources), you let us have copies of the valuation by $\mathrm{M}/\mathrm{S}$ Katuramu and Company to compare the two together so that we can be of assistance to you. Since this is a matter of a technical nature we can only argue on the basis of technical data. We are sorry not to have made it earlier but I tnink that we can fix a date for the meeting, it is imperative that copies of the valuation statement by M/S Katuramu and Co. be made available to us except of course where you Excellency would no longer wish to refer to that assessment for the purpose of this case.

I enclose a photostat copy of a letter dated 20th October, 1975 from M/S Kayondo & Co. Advocates for your information. I am asking M/S Kayondo & Co. Advocates to hold on as I am hopeful that there is still a possibility of settlement."

This is further evidence of the part played by the Attorney General in the negotiation for the alleged purchase for the property.

Finally, Exhibit $D8$ is also a letter addressed to the Ambassador of the appellant by the Attorney General which judgement Amin chose the property and through the ACCrney-General negotiated the deal including fixing of and receiving the purchase price. There is no evidence not is it the case for the respondent that the appellant was guilty of any duress. The duress complained of was by a third party, Amin. I am satisfied on the evidence that the appellant procured the contract of sale through the agency of Amin. The second ground of appeal must therefore fail in my view.

$.20$ .

Learned counsel did not specifically argue grounds three and four of the appeal saying they had been covered when he argued grounds 1 and 2.

Ground five was to the effect that the learned trial Judge erred in law in deciding that the sale agreement was uncompleted and voidable simply because the appellant did not register the transfer under the provisions of the Registration of Titles Act.

This ground of appeal must succeed. The relevant part in the judgement of the court below has roundy been reproduced in this judgement where reference is made to "Laws of Uganda Cap 205 at page 3602 read together with S.4 of the Registration of Documents Act, Laws of Uganda Cap 80 at page 1253". I am at a loss as to why the learned trial Judge referred to page 3602 rather than to the 4 or 5 sections on that page which deal with various topics none of which appears to be relevant to the issue before him.

I am equally unable to see the relevance of S.4 of the Registration of Documents Act. I am in agreement with Mr. Kateera that the learned Judge may well have had in mind S.51 of the Registration of Titles Act which provides, inter alia,

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an intention on his part to contract in apparently consensual terms, but there is coactus volui on his side. The contract is with non est factum. The contract procured by duress is therefore not void, it is voidable at the discretion of the party subject to duress."

The learned author goes on to state at paragraph 484 that duress of the person may consist in vmolence to the person or threats of violence or imprisonment whether actual or threatened. Lastly the learned author at paragraph 498 goes on to say,

> "Where it is sought to avoid a contract on the ground of duress excercised, not by the party seeking to enforce the agreement, but by some third person, the party seeking to avoid the contract must prove that the other party knew of the duress or at least that he had procured the making of the contract through the agency of the party who excercised the duress."

I am persuaded that these are sound principles of law and considering the evidence as a whole and on a balance of probabilities I am unable to say that the learned trial Judge came to the wrong conclusion on the issue of duress. On the evidence of Kayondo which was accepted by the learned trial Judge, Miss Treon was under fear for her life when she entered into the purchase deal. Kayondo said in his evidence on this issue.

> "I advised her to act normally and not to show signs. She acted as if tnings are normal and a sum of Shs. 1.2 million was paid to her."

This clearly explains the evidence on the record which otherwise clearly indicates that the respondent was a willing seller. From the correspondence referred to, in this

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for the claim of mesne profits at the rate of Shs. 200A000/per month from March, 1975 till the date of Judgement.

$-22$

I must reject Mr. Kateera's argument that there was no evidence about the amount of mesne profits. Mr. Ewanika counsel for the respondent pointed out that Treon (Pw1) claimed in her evidence mesne profits at the rate of 200,000/per month. I am not in a position to say that the learned trial Judge was wrong in accepting this figure which apparently was not challenged at the trial. What baffles me, however, is that neither party has addressed this court as to why mesne profits are payable at all. If indeed as the authorities show, the contract is not void but voidable, then it seems to me that the occupation of the premises by the appellant was under a perfectly valid contract until it is avoided. Authorities appear to suggest that a voidable contract remains perfectly valid until it is set aside. There cannot, therefore, be any question of wrong possession. I am not sure that merely because the respondent returned part of the purchase price that per se constituted avoidance of the contract. In my view steps should have been taken to have the contract set aside.

Here again I would like to refer in particular to Chitty on Contracts at paragraph 16, "A voidable contract is one where one or more parties there to have the power, by a manifestation of election to do so, to avoid the legal relations created by the contract; or by affirmation of the contract to extinguish the power of avoidance ............... If the contract is wholly executory, the party entitled to avoid the contract can plead its voidability in action against him. If it has

$\cdots \cdots \cdots \cdots^{23},$

"No instrument until registered in manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act...... but upon such registration the estate or interest comprised in the instrument shall pass ......"

$-29$ -

$\mathbf{t}^*$

$\pmb{\varepsilon}$

In Souza Figuerredo & Co. vs. Moorings Hotel Co. Ltd 1960 EA 926 the provisions of $S.51$ were considered and it was held that an unregistered instrument operates as contract inter partes and can confer a right to specific performance of the contract.

The last ground of appeal argued by Mr. Kateera was that the learned trial Judge erred in law in awarding mesne profits without the slightest evidence to prove the mesne profits. There was no evidence of what income was obtainable from the property.

On the question of mesne profits the learned trial Judge said,

> "I finally order that the plaintiff shall recover from the defendant, the reasonable rent due for the use of the premises for the period claimed i.e 13 years and 7 months at the rent of Shs. $200,000/-$ per month; less the amount i.e part of the price which was used on payment of ground rent, which was due and payable by the plaintiff as the registered owner; in effect the award made is in the total amount of Shs. $63,200,000/-$ ."

In paragraph 10 of the Plaint the respondent claimed the appellant was trespassing on the property depriving the respondent of use and causing him loss of rents since March, 1975 on the grounds that the purported acquisition of the property was illegal. This appears to be the basis

$\ldots \ldots \ldots, 22$

been wholly or partly executed, he can claim to have it set aside and to be restored to his original position. But until the right of avoidance is exercised, the contract is valid."

We have not received any submissions on the matter by counsel on both sides but I doubt whether the correct action was an action in trespass as in this case.

I would for different reasons allow the appeal on this ground, set aside the order for mesne profits and it follows also that the order for general damages cannot stand which I would also set a side. I would otherwise dismiss the appeal. In the circumstances I would allow the respondent only half of the costs in this court.

Dated this 23rd day of August 1989 at Mengo Orders

As both Manyindo D. C. J. and Odoki J. S. C. agree the orders proposed in my judgement are hereby made.

SIGNED:

S. W. W. WAMBULI CHIEF JUSTICE

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B BABIGUMIRA, REGISTRAR SUPREME COURT. THE SUPREME COURT OF UGANDA

AT MENGO.

CIVIL APPEAL NO. 4 of 1988

(CORAM: WAMBUZI, C. J., MANYINDO, D. C. J., ODOKI, J. S. C)

SOMALI DEMOCRATIC REPUBLIC ::::::::::::::::::: APPELLANT

$A$ $N$ $D$

ANOOP SUNDERIAL TREON ::::::::::::::::::::::: RESPONDENT

(appeal from the Judrement of the High Court of Uganda at Kampal Mr. Justice W. K. M Kityo dated $20/10/88$ in H. C. C. S. No. $976/87$ )

# JUDGEMENT OF MANYINDO, D. C. J.

I have read the judgement of the learned Chief Justice just delivered. I agree with it and with the reasoning on which it is based. I concur in the order for costs proposed by the learned Chief Justice.

Dated at Menro this 23rd day of August 1989.

SIGNED:

S. T. MANYINDO DEPUTY CHIEF JUSTICE

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA, REGISTRAR SUPREME COURT.

$\leq$

### THE SUPREME COURT OF UGANDA. $\mathbf{I}\mathbf{N}$

AT MENGO

$(CORAM:$ WAMBUZI C. J., MANYINDO D. C. J. & ODOKI J. S. C.)

#### $\overline{4}$ CIVIL APPEAL NO. OF 1988

### BETWEEN

SOMALI DEMOCRATIC REPUBLIC :::::::::::::::::::::: APPELLANT

$A$ N D

ANOOP SUNDERIAL TREON :::::::::::::::::::::::::: RESPONDENT

> (Appeal from the judgment of the High Court, (Kityo J.) dated 20th October 1988.

> > $I$ N

(Givil Suit No. 976 of 1987)

## JUDGMENT OF ODOKI J. S. C:

I have had the opportunity of reading in draft the judgment prepared by the learned Chief Justice and I agree with him that this appeal must succeed only in part. On the main issue of whether the contract entered into between the appellant and the respondent's predecessor in title Miss. Treon, I agree that the contract was induced by duress and therefore voidable. I also agree that the DSADO profits claimed by the respondent are not recoverable because the contract though voidable remained subsisting until it was set aside by the court. I would otherwise dismiss the appeal.

I would therefore concur in the order as proposed by the learned Chief Justice.

Dated at Mengo this 23rd day of August 1989.

SIGNED:

B. J. ODOKI JUSTICE OF THE SUPREME COURT.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA, REGISTRAR SUPREME COURT.