[1984] UGCA 1

## IN THE COURT OF APPEARSEKANDI AND COMPANY

ADVOCATES

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#### AT KAMPALA

(CORAM: LUBOGO, V-P., NYAMUCHONCHO, J. A., ASTHANA, J. A.)

### CIVIL APPEA! NO.1 OF 1983

# BETWEEN

UNITED CULTIVATE CO. (U) LTD. ............... AFPEMLANT.

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UGANDA PROPERTIES LTD. ...................... RESPONDENT.

(Appeal from a Judgment and Decree of the High Court of Uganda at Kampala (Mr. Manyindo, J.) dated 11th October, 1982

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### High Court Civil Suit No.867/81)

## JUDGMENT OF NYAMUCHONCHO, J. A.

The appellant company, to which I will refer as ' the defeddant' is owned jointly by a Japanese Company known as Yada Marketing Company Ltd. and the Uganda Government. The respondent company, to which I will refer as 'the plaintiff', is a British Company incorporated in the United Kingdom and registered in Uganda. It has business in this country and operates under the name of Mitchell Cotts. Before 1973, the plaintiff owned two properties; I.e. plot No.1 which is comprised in Freehold Register vol. 74 Folio 16 (Exh. F.1), and plot No.2 which is comprised in Rreehold Register vol.74 Folio 17 (Exh. P.2) on which it had two houses. In 1973, these to properties were leased to Uganda Company (Africe) Ltd. by the plaintiff for thirty five years. The plaintiff left this country following the expulsion of non-citizen-Asians and the expopropriation of Europeans' estates. The plaintiff returned to this country after the war and discovered that its properties, now in dispute, had not been taken over by the Government, they were being used by the defendant and another, it demanded back those properties from the defendants who refused to quit; it asked them to

case against the 2nd defendant with costs; but, he entered judgment for the plaintiff against the 1st defendant and ordered the defendant to give vacant possession of the two properties to the plaintiff and pay Shs.2,000/= per month per house from 1st Janaury, 1980, till the day the plaint for take over the houses; he also ordered the deferdant to pay Shs.3,000/= to the plaintiff as general damages for trespses. The defendant now appeals. There is also a cross appeal by the rlaintiff against the dismissal of the suit against the 2nd defendant. I will turn to it afterwards.

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SSEKANDI AND COMPANY

Four grounds of appeal were lodged, but, at the hearing, the first ground of appeal was abandoned and the fourth ground was not argued. The ground which was ar ued states:

> "The learned judge erred in his finding to the effect that the Uganda Company (Africa) Ltd. had abandoned the plaintiff's property, or the said Uganda Company (Africa) Ltd. had left this country without evidence or sufficient evidence on those issues and in spite of the fact that, greater and immediate interest in the property is that of the Uganda Co. (Africa) Ltd. as opposed to the interest of the respondent which is only reversionary and/or when the right to reversion had not yet accrued."

I would like to point out that this ground on which rests the success or failure of the case was not pleaded or made one of the issues for the determination by the court; this issue arose during cross-examination of the plaintiff's witness; the judge made a finding on it in favour of the plaintiff.

Counsel for the appellant argued that, it was erroneous GF the trial judge to hold that the lessee had attrdoned the property. He said that the learned judge was not entitled to make that finding as there was no evidence before him to prove that the lessee had abandoned the property. He said that The Uganda Company (Africa) Ltd., the leasee, is a company incor-

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SSLKANDI AND COMPANY porated in Uganda and as such it cannot leave the country, it is, therefore, still in possession of the properties, in that case, the landlord cannot sue in trespass until after the expiry of the lease. He submitted that the plaintiff cannot sue in trespass as he is a reversioner, because a reversioner can only sue where the injury to his property is of a permanent nature. In support of these submissions, he reffered us to para.1327 Clerk and Lindsell on Torts which states that, in general, the only person who can sue for a trespass is the person who was in possession, actual or constructive, at the time of the trespass committed. A reversioner can only sue where a trespass has caused a permanent injury to the land affecting the value of his inheritance. See also Jones v. Llanrwst Urban District Council [1911)1 Ch. 393 and Mayfair Property Co. v. Johnstone (1894)1 Ch. 508. In reply, Mr. Katera agreed that trespass is actionable at the suit of the person in possession of the land but, he said, that the person in possession must be in actual occupation or physical control of land. See Wuta-Ofei v. Danquah (1961)3 All E. R. 596 at page 599 and para.1318 Clerk and Lindsell. He submitted that English courts insist on possession because of the complicated nature of the English land tenure. There, it is not an easy matter to trace who has a title to the land, hence, the insistence on possession. He submitted, however, that that cannot be the law in Uganda where it is very easy to find the owner of the land by looking at his title. He therefore, urged the court to depart from the English practice in that respect and hold that a person who has a title has legal possession and can, therefore, sue in trespass whether he is in actual possession of the land or not.

Mr. Kayondo's first argument that the lessee had not abandoned the property was rejected by the learned trial judge

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who held that, the lessee had abandoned the property and that it would be absurd to hold that the plaintiff has no right of re-entry even against strangers. The question now is, was to hold there sufficient evidence to enable the judge as he did. The question whether the lessee had abandoned the premises is a question of fact which should be proved by evidence, direct or circumstantial.

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The circumstantial evidence of Wanyama (D. W.1) clearly shows that when the houses were handed over to him by Uganda Industrial Machinery Ltdd, the lessee was no longer occupying them. With this evidence, how can it be said that the learned judge erred to hold that the lessee had abandoned the plaintiff's properties? If the 1st defendant wants the court to believe that the lessee was and (is) still vin possession, it must prove that fact. It could have proved it by calling the lessee as a witness. The court cannot, in the absence of such evidence, hold that the lessee is still in possession when its officers are no longer occupying those houses. We all know that a company operates through its directors and officers. If the officers of the lessee no longer occupy those premises, then, the only logical cunclusion is that they abandoned them. Where a lessee abandons a house unoccupied, the landlord may re-enter and re-rent it to another tenant; See Walls v. Atcheson E. R. vol.130 p.591 and see also Bird v. Defonvielle E. R. vol.175 p.171. In 23 Halisbury's Laws of England at p.552 para.1212, we find this statement of law:

> "The mere abandonment of the premises by the tenant does not affect his liability to pay rent. If, however, the landlord subsquently enters and uses the premises for his own purpose, this is equivalent to ar eviction and he cannot recover rent subsquently accrueing due; and so, if the landlord re-rents the premises to the other tenant who goes into possession, this operates as an eviction of the previous tenant from whom the landlord can-

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not recover all rent which falls due after the re-renting."

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cons ....

This quotation shows that, a landlord can re-enter his I terminents the loan abandoned premises before the lease has expired.

The second argument was that the plaintiff cannot sue in trespass until the lease has expired. With respect, I cannot accept this submission. The true view seems to be that the landlord cannot sue in trespass if the lessee is in effective control. At para. 1318 Clerk and Lindsell, the learned author states that possession is evidenced, in case of a building, by occupation or if the building is unoccupied by possession of the key. There is no doubt that Uganda Company (Africa) Ltd. is no longer occupying the houses; if it were, the defendants, would not be in those houses. The leasee has no keys to exclude trespassers from getting in. In this case, it seems clear that the lessee is no longer in effective control. Mr. Katera had invited the court to hold that a person who has a title legal has possession thus departing from English law which requires possession as a pre-requisite to such action. This submission $173$ EA 437 was considered in Moya Drift Farm Ltd. v. Theuri (supra). In that case, the appellant sued the respondent claiming that it was the registered owner of certain land and that the respondent had trespassed on it and had refused the appellant entry. At the trial, counsel for the respondent urged the court that for trespass to lie there must be an invasion on possession and the plaintiff could not contend being in possession at the time of the defendant's entry upon the area in question. The trial judge upheld this argument; on appeal, counsel for the appellant argued that it was formerly the law of England that a person had to have taken possession of land before he could take proceedings in trespass, but he submitted that it cannot be the law of Kenya as it would make nonsese of s.23 of the Registration of Titles Act.

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In his judgment at p.115 bottom, Spry, V-P, agreed with

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counsel for the appellant, he said:

"I find this argument irresistible and I do not think it is neccessary to examine the law of England. I cannot see how a person could possibly be described as 'the absolute and indefeasible owner' of land if he could not cause a trespasser on it to be evicted. The Act gives a registered proprietor his title on registration and, unless there is any other person lawfully in possession, such as a tenant, I think that title carries with it legal possession: there is nothing in the Act to say or even suggest that his title is imperfect until he has taken physical possession."

In his short judgment, Sir William Duffus P. said:

"The fact that the appellant was the registered proprietor as owner in fee simple under the Registration of Titles Act, and as such vested with the absolute and indefeasible ownership of the land, was sufficient to vest the legal possession of the land in the appellant, and that this possession would be sufficient to support the action of trespass against a trespasser wrongly on the land."

S.23 of the Kenya Act is rather similar as s.56 of our Registration of Titles Act (Cap. 205) which enacts:

> "No certificate of titles issued ....... under this Act shall be impeached or defeasible ...... and every certificate of title issued under any of the provisions herein contained shall be received in all courts as evidence of the particulars, therein set forth and of the entry thereof in the Register Book and shall be conclusive evidence that the person named in such certificate as the proprietor ... .... is seized or possessed of such estate or interest ........"

I think the decision in Moya's case represents what the law should be in Uganda. It is an authority. I, therefore, hold that a person holding a certificate of title has, by virtue of that title, legal possession and can sue in trespass.

In the instant case, the defendants are not in lawful possession of the disputed properties, they are, trespassers or squateers, the plaintiff, as the registered proprietor of the land, is entitled to evict them. They have no right $... / 8$

to be on its land.

Mr. Kayondo, however, appears to defend the occupation of the premises by the defendants basing his case on the title of the lessee but as it was held in Moya Drift Farm v. Theuri (1973) E. A. 437 the defendants, as trespassers, cannot rely on the jus tertii. They must defend the case by the strength of their own title. The defendants were not put into possession by the lessee, they cannot, therefore, rely on the title of the lessee to defend their unlawful occupation.

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There was an argument as to whether the plaintiff had re-entered the premises to ehable it to sue in trespass. In view of the decision in Moya's case, this argument must fail. The argument by counsel for the appellant was that there was no re-entry on the premises by the plaintiff, because, he said, the entry to be effective, must be between the landlord and the lessee. Mr. Katera argued that the re-entry need not be between the lessee and the lessor, it is sufficient reentry if the landlord puts his foot on the demised land; alternatively, he said that re-entry can be affected by a formal demand. If these two fail, then the service of summonses on the defendant is equivalent to re-entry. He cited Canas Property Co, Ltd. v. K. L. Television Service Ltd. (1970)2 W. L. R. 1133. According to Clerk and Lindsell on Torts at para.1330, the mere putting of the foot or any part of the person across the boundry is sufficient to constitute entry. Alternatively, the landlord may make a claim which has the same effect as actual entry in entitling the person with the right of entry to bring an action of trespass. It was held in Canas Property Co. Ltd. v. K. L. Television Services Ltd. (1970)2 W. L. R. 1133 in the words of Lord Denning M. R. at p.1139 that:

> ..... the lessor must actually re-enter, or do what is equivalent to the re-entry namely sue and serve a writ for possession oh the lessee ........."

> > $...19$ In this case it is clear that the plaintiff exhausted all these steps. It did enter upon the land. It caused the premises to be valued; see the testimony of P. W.2; it demanded back his premises but they were not returned to it. It issued sommons which were served on the defendants. Mr. Wanyama (D. W.1) WA agrees that all this was done. In my view, all this constituted re-entry required at law.

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What emerges from the facts of this case is that, the Having admitted found defendants have no defence to the action. that the plaintiff is the registered proprietor of the two properties, they have no legal right or interest to defend. The contention that the plaintiff could not sue until the lease has run out is for the reasons I have given above untainable; firstly, because the defendants cannot rely on the title of the third party to defeat the claim of the plaintiff; secondly, if the defendants are left in occupation till the expiry of the lease, it would vest the properties in the defendants by adverse possession. The plaintiff's action against them would be barred by limitation of time. This would be doing an enormous injustice to the plaintiff. For these reasons, this appeal fails, it is dismissed with costs.

I now turn to the cross-appeal. The plaintiff had sued the 2nd defendant for occupying its house since Janaury 1980, without the plaintiff's consent and without payment of rent and claimed from him (a) general dama es for trespass; (b) order of possession and (c) mesne profits at the rate of Shs.2,000/= per month from Janaury 1, 1980, till payment in full. The 2nd defendant's defende was that he was an employee of the 1st defendant till 1978 and in that capacity he was allocated a house by the 1st defendant. This defence was irrelevant. The plaintiff was not sueing the 2nd defendant in respect of the period he has pleaded. His alternative defence was that the plaintiff is not the registered proprietor of the premises in dispute. This defende also failed when the

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lst issue decided that the plaintiff is the registered proprietor of the premises in dispute. However, the trial judge decided in favour of the 2nd defendant on a different ground and dismissed the case against him. He said:

> "It seems clear to me that he (the defendant) was put in the plaintiff's premises by his employer who now keeps him there as a tenant."

## Further down he said:

"The 2nd defendant was not given notice<br>to quit or even notice of intention to sue. He was never invited to enter into a tenancy agreement with the plaintiff only the 1st defendant was asked to do so. It is also notewotthy that the defendants have not been sued jointly and/or severally. In the circumstances I am unable to hold that the 2nd defendant is liable to the plaintiff for damage for trespass. It follows that the plaintiff's suit must fail ........ It is dismissed with costs to him."

It is against this decision that the plaintiff now app appeals. The ground of cross-appeal are:

- 1. The learned trial judge was wrong in law in holding that the appellants were not sued jointly; - The learned trial judge erred in law in deciding that the suit against the 2nd respondent should be $2.$ dismissed and that the appellant should pay the costs to the 2nd respondent; - 3. The learned trial judge erred in law in dismissing the suit against the 2nd respondent on the ground that the respondent was not given notice to quit or notice of intention to sue or on the ground that he was not invited to enter into a Tenancy Agreement.

Let me start with the arguement that the defendants were not sued jointly. Mr. Katera, counsel for the appellant, submitted that the two defendants were joined in the same action that this is clear when the plaint is read and that the omission of the word 'jointly' in the plaint could not defeat an otherwise good cause of action against the 2nd defendant. Mr. Kayondo, counsel for the 2nd defendant argued that the defendants ought to have been sued jointly. He submitted

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that the omission of the word 'jointly' was very important and fatal to the plaintiff's case. He argued that the word 'jointly' has acquired a techniical meaning in law and its omission should result in the dismissal of the suit. However, is the omission of the word 'jointly' so vital so as to have the case thrown out? 0.1 r.3 enacts that all persons may be joined as defendants whether jointly, severally, or in alternative. It appears to me that the requirement of this rule is that, in order to join persons as defendants, the right to relief should arise out of the same action or transaction or series of actions or transactions alleged to exist. In this case, the right to relief does not arise out of the same action, for each defendant is an independant trespasser, and, as I see it, they could not be sued jointly; for the same reason, they could not be sued in the alternative as the plaintiff's prayer was to recover possession and damages from each defendant. They could be sued severally or separately and that is what was done although the word severally is missing in the plainti Should the action against the 2nd defendant be dismissed because of that omission? In Z. E. Kangave v. Attorney General (1972)2 W. L. R. 150, the plaintiff sued the defendant for damages for personal injuries but in his statement of claim there was no averment that the defendant's servant was acting in the course of his employement. It was submitted on behalf of the defendant that because of that omission the plaint did not disclose a cause of action. The learned trial judge held, following the decision in Sullivan v. Ceman (1959) E. A. 239, that a literal reading of the plaint was not the correct approach and there was by neccessary implication an allegation that the driver had complied with the order of the appellant. In Sullivan's case it was said per curiab, that:

> "The plaint must allege all facts neccessary to establish the cause of action.

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This fundamental rule held that a neccessary fact not pleaded must be implied because otherwise another necessary fact that was pleaded could not be true."

In my opinion, the plaint shows a cause of action against the 2nd defendant. Each defendant was occupying the plaintiff's house as a trespasser. Looking at the plaint it can be inferred that each defendant was sued separately as a trespasser. I think a literal reading of the plaint is not the right approach. In my view, the case should not have been thrown out on this ground, after all, objection should have been taken at the start or else it could be taken as waived.

The second reason for dismissing the suit was that the 2nd defendant was a tenant of the 1st defendant. The 1st defendant, in my view, is a trespasser he had no title to pass to his tenant, therefore, the 2nd defendant is also a trespasser. The plaintiff could have brought an action separately against each defendant for recovery of possession of his prehad Been mises. I wonder whether if the 2nd defendant sued alone he would have won the case by pleading that he is in occupation of the premises by virtue of the tenancy agreement between him and the 1st defendant. That defence would not succeed. In Wilson v. Weddel (1980) E. R. p.97 a landlord sued the , corvan defendant, who was occupying his premises with his master and the objection was that the defendant would not have been sued since he was a servant. The court held that the defendat was a sufficient trespasser although he is but a servant of the prentended owner of the land and that he who has the true title may bring the action against the master or servant at his election. The position here is not very different, that the master was also sued. As we all know a tenant is not a $N$ i (s $m/s$ servant. If the servant in William's case lost, how can the tenant in this case win? The 2nd defendant is not a servant,

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his trespass cannot be past on to the 1st defendant. It would have been different if he were a servant of the 1st defendant for then his trespass would be answerable by his master. In my opinion, he is a trespasser and is liable to the plaintiff. I am unable to accept the learned trial judge's reasons for dismissing the case against him that he was put in the plaintiff's premises by his emploer, nor can I accept the finding that the failure to give him notice to quit should result in the dismissal of the action. I would say that, this long practice which has acquired the force of law should continue to be obse but I do not think that failure to observe it can be a good reason to dismiss the case particulary in a case like this one where the dispute was well known to the defendant. Early in 1980, the plaintiff attempted to evict him. He ought to have known then that his landlord's title was being disputed. Where the dispute is not known and notice to sue is not given before the summons is served on the defendant, I think the court would not dismiss the case but would exercise its discreation in awarding costs to the plaintiff.

I would, therefore, allow the cross-appeal with costs. I would set aside the order of the High Court dismissing the suit against the 2nd defendant with costs and I would enter judgment in favour of the plaintiff against the 2nd defendant with costs. I would also order the 2nd defendant to pay the plaintiff general damges of Shs. 3,000/= for trespass. The other orders of the High Court remain undistubbed. I would a<br>order that the deposit now in course the proof to the pla Before I take leave of this case, I would like to point out that at the trail, many exhibits were produced but these exhibits were not incorporated in the Memorandum of Appeal, the omission contravenes the provisions of $r.85$ of the Rules of this Court. This court had to resort to the original file of the High Court to look up these exhibits. It has been

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stated many times that the provisions of r.85 must be complied with when the record of appeal is prepared. Failure to comply with this rule would be visited by the dismissal of the appeal. In Nirmal Singh v. Ram Singh (1961) E. A. 168, Criwshaw, J. A said:

> "..... the appellant had failed, in filing his appeal, to attach to his Memorandum copies of material and neccessary documents as required by paras. (C) & (G) of $r.62(4)$ of the East African Court of Appeal rules (these paras. are now paras (F) & (K) of $r.85(1)$ of the Rules of this court), had it not been for the dismissal of this appeal on other ground, it would, therefore, have been neccessary to consider whether the appeal should be dismissed under $r.72(2)$ . This court has on another occassion had to commit adversely on the failure of advocates to comply fully with the provisions of the rules ........"

This warning should be taken very seriously by advocates who prepare the record of appeal. The provisions of $r.85(1)$ should be strictly complied with.

DATED at Kampala this $\frac{27}{4}$ day of $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$

P. Nyamuchoncho JUSTICE OF APPEAL.

SSEKANDI AND COMPANY