[2025] UGCommC 17

#### 5 **THE REPUBLIC OF UGANDA**

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

#### **(COMMERCIAL DIVISION)**

#### **CIVIL SUIL NO. 0919 OF 2019**

#### **1. VEN GROUP LTD**

#### 10 **2. NANTAMBALA JOYCE ::::::::::::::::::::::::::::::::::::::: PLAINTIFFS**

#### **VERSUS**

#### **1. UGANDA REGISTRATION SERVICES BUREAU**

**2. UGANDA PERFORMING RIGHTS SOCIETY LTD :::::::: DEFENDANTS**

## 15 **BEFORE: HON. LADY JUSTICE HARRIET GRACE MAGALA JUDGMENT**

#### **Brief facts**

On 19th August 2019, the Defendants, through the 1st Defendant's agent a one Tumuhairwe Alex, based on failure to pay invoices amounting to Ugx 20 6,433,584/-, entered the premises of the 1st Plaintiff and carried away music equipment valued at UGX 62,000,000/- (Uganda Shillings Sixty-Two Million only). The Plaintiffs now sue the Defendants for a declaration that the seizure of the property was wrongful and malicious, permanent return of the items, damages for wrongful detention/detinue, interest and costs of the suit.

#### 25 **Representation**

The Plaintiff was represented by Mr. Asingwire Martin of M/s Asingwire & Partners, Advocates & Legal Consultants. The Defendants were never represented since this matter proceeded *ex-parte*. This resulted from this court's decision in *Miscellaneous Application No. 1233 of 2022: Uganda*

30 *Registration Services Bureau vs Ven Group Limited & Anor.*

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## **Hearing**

The Plaintiff led evidence of one witness, PW1, Kaliisa Moses Kalangwa, the director of the Plaintiff, and relied on the following documents that were admitted in evidence:

- 10 a) Seizure and restraining order dated 23rd August 2019 marked as PEXH.1 - b) Notice of intended enforcement dated 1st August 2019 marked as PEXH. 2 - c) A set of tax invoices, 4 in number, collectively marked as PEXH. 3 - 15 d) An agreement dated 19th April 2018 marked as PEXH. 4 - e) Statutory Notice dated 17th September 2019 marked as PEXH. 5 - f) Receipt from Mukono Municipal Council dated 3rd April 2017 marked as PEXH.6 - g) Letter dated 31st March 2017 from Mukono Municipal Council marked 20 as PEXH.7

## **Preliminary observation**

### Jurisdiction

A reading of the pleadings and annexures shows that the cause of action arose in Mukono. This means the High Court sitting at Mukono should have 25 heard the matter. The court notes that under the **Judicature (Designation**

**of High Court Circuits) Instrument No. 94 of 2023**, matters are meant to be heard in their respective designated circuits or Divisions. The Honorable Chief Justice issued **Instrument No. 94 of 2023** to enable ease of administration and access to justice by the people of the Republic of

30 Uganda. However, **Article 139(1) of the Constitution of Uganda** states that the High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdictions as may be conferred on it by this Constitution or other

- 5 law. Therefore, whereas the High Court sits in different gazetted places, the venue or place it sits does not oust its unlimited original jurisdiction. In the case of *Uganda Versus Hon. Kasiano Wadri and 30 others Criminal Revision No. 2 of 2018,* **Hon. Justice Mubiru** noted that: - *"….jurisdiction must not be confounded with venue. Jurisdiction is the* 10 *authority to hear and determine a cause, in the sense of power rather than in the sense of selection. There is thus a distinction between "jurisdiction" and "venue." Whereas venue is simply a geographic location, jurisdiction has a geographic location alongside aspects that have nothing to do with geography or location."* (Emphasis is mine) - 15 Therefore, whether at Kampala, Jinja, Mbarara or Mukono etc, this Court maintains its unlimited original jurisdiction to hear matters irrespective of its sitting venue. Confines

The above observations notwithstanding, this court is mindful not to render the efforts of **Instrument No. 94 of 2023** futile. Parties must file their suits 20 within the boundaries of the Instrument save for where exceptional circumstances exist, and the same must be considered by the Court on a case-by-case basis.

The court notes that the creation of circuits is not to oust the court's unlimited jurisdiction but rather to effectively administer and manage cases, as 25 observed in *Ochwa Ronald Versus Uganda CACA No. 407 of 2019.* In the case of *Uganda Muslim Supreme Council Versus Babirye Yudaya & Ors. and Hon. Sewante Moses Versus Babirye Yudaya and Fifteen Ors. Consolidated Applications Nos. 548 of 2024 and 541, 549 and 536 of 2024***, Hon. Justice Dr. Douglas Singiza** observed that:

30 *"In my view, while any high court can exercise its original jurisdiction on any matter in any part of the country, prudence and orderliness require that certain matters be heard and determined in the geographical areas where the dispute arose, unless sufficient reasons to the contrary can be demonstrated."* (Emphasis added)

- 5 This Court will, therefore, proceed to determine this matter owing to the fact that the matter has been in this Court since 2019, and it is only now that the Court has observed the error as to the matter being in the wrong circuit of the High Court. The matter is now at the judgment stage, and a transfer or dismissal would lead to injustice to the parties, in this case, the Plaintiffs. - 10 Secondly, this court also rendered a decision in *Miscellaneous Application No. 1233 of 2022: Uganda Registration Services Bureau vs. Ven Group Limited & Anor.,* arising out of the main suit on the 22nd September 2022.

## 2nd Plaintiff's lack of a cause of action against the Defendants

A cause of action is determined strictly from the pleadings and their 15 annextures. The definition of a cause of action was well stated in **Cottar vs Attorney General for Kenya (1938) , 5 EACA. 18,** where it was said by Sir Joseph Sheridan, CJ that:

> "*what is important in considering a cause of action is revealed by the pleadings is the question as to what right has been violated."*

20 Sheridan, CJ went on to further state that:

"*In addition, of course, the Plaintiff must appear as a person aggrieved by the violation of the right and the defendant as a person who is liable. I would summarize the position as I see it by saying that if a plaint shows that the plaintiff enjoyed a right, that the right has been violated and that* 25 *the defendant is liable, then, in my opinion, a cause of action has been disclosed and any omission or defect may be put right by amendment. If on the other hand any of those essentials is missing, no cause of action has been shown and no amendment is permissible."*

The above definition was relied upon and upheld by Spry, the Vice President 30 of the East Africa Court of Appeal sitting at Dar-es-Salaam in the *locus classicus* case of **Auto Garage & Others vs Motokov , No. 3 [1971] EA 514 …..**

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- 5 A cause of action therefore refers to the existence of a right enjoyed by the claimant, there is a violation of that right and the defendant is liable for the violation. It is every fact which is material to be proved to enable the plaintiff succeed on every fact which if denied, the plaintiff must prove in order to obtain a judgment. - 10 A reading of the plaint does not establish what cause of action the 2nd Plaintiff has against the Defendants. The Property that was confiscated belonged to the 1st Plaintiff. The 1st Plaintiff was also in possession of the same property at the time it was confiscated (**see PEXH. 4**). It was also the 1st Plaintiff that was in occupation and use of the premises that were raided. The 2nd Plaintiff 15 is hereby struck off the suit for failure to establish a cause of action against

## **Issues**

the Defendants.

- 1. Whether there was wrongful/malicious seizure of the Plaintiffs' properties? - 20 2. What remedies are available to the Plaintiff?

### **Resolution**

# **1. Whether there was wrongful/malicious seizure of the Plaintiffs' properties?**

It was the submission of learned counsel for the Plaintiff that an interlocutory 25 judgment was entered under **Order 9, rule 8 of the Civil Procedure Rules.** Hence, the question of liability was settled. What remained was proof of the quantum of damages. He relied on the case of **Sheik Abdulai Rajab & others vs. Sheik Abubakar & others HCCS 28 of 2013** to pray that the Defendants should be held liable for the malicious and wrong seizure of the Plaintiff's 30 property.

However, I note that, from the record, this Court, on the 22nd day of September 2022 in *Miscellaneous Application No. 1233 of 2022*, set aside the default

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- 5 judgment for having been issued in error and ordered the matter to proceed *ex -parte* as per **Order 9 Rule 11(2) of the Civil Procedure Rules**. Therefore, the question of liability still exists and the Plaintiff has to prove her case on the balance of probabilities. - That notwithstanding, it is now trite law that if the defendant fails to file a 10 defense or reply to a claim, the allegations in the plaint are impliedly admitted as true. But this proposition does not exonerate the claimant of the duty to prove his or her case. The allegations of the Plaintiff, if true are what in law is termed as the tort of conversion. Conversion is committed when a party, i.e. the defendant, unlawfully interferes with the claimant's possession or title in 15 goods or chattels. The Plaintiff must prove that he or she was entitled to immediate possession of a chattel and that they were deprived of the same by the defendant. In the case of *Oketha Dafala Valente versus Attorney General HCCS No. 069 of 2004,* **Hon. Justice Stephen Mubiru** observed that: - 20 *"To constitute conversion there must be a positive wrongful act of dealing with the goods in a manner inconsistent with the owner's rights, and an intention in so doing to deny the owner's rights, or to assert a right inconsistent with them."* - It was the evidence of PW1 that the 1st Plaintiff purchased the building in 25 2018 and machines/equipment in 2019. The Defendants then impounded the machines, claiming that Satellite Beach owed them a total of UGX 6,433,584 from unpaid invoices and demands payments from 2015 to 2019. The 2nd Plaintiff explained that she did not know the Director of the Satellite Beach and that the machines did not belong to the said beach, but she was never 30 listened to. As a result, the business operations were disrupted by the seizure of the machines. Further, no employee of the 1st Plaintiff received any prior notice of demand for money. Even the notice from the Plaintiff's lawyers demanding for the return of the goods was ignored.

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5 It is not in dispute that the 1st Plaintiff was the owner of and in possession of goods seized as seen from PEXH.1. The Sale Agreement marked as PEXH 4 shows that the 1st Plaintiff purchased the equipment from one Kamba William.

According to PEXH.1, the Defendants seized the goods of the 1st Plaintiff under powers conferred upon them by **sections 53 and 54 of the Copyright and**

10 **Neigboring Rights Act and Regulations 22 and 28 of the Copyright and Neigbhoring Rights Regulations. Section 53(2) of the Copyright and Neighboring Rights Act cap. 222 (herein CNRA)** states that:

*"An inspector may seize and detain any substance or article which he or she has reasonable cause to believe to be an infringing or a copyright in* 15 *any work or in relation to which or by means of which there is reasonable cause to believe that an offence under this Act has been or is being committed, any document which he or she has reasonable cause to believe to be a document which may be required in proceedings under this Act."* Emphasis is added.

- 20 Further, under **Regulation 28(1) of the Copyright and Neigbhouring Rights Regulations 2010**, an inspector may seize and detain any substance which he or she has reasonable cause to believe has infringed or is about to infringe a copyright in a work. The complaint against the 1st Plaintiff was that she failed to pay invoices from 2015 to 2019. The invoices were - 25 admitted as evidence and collectively marked as PEXH. 3. **Section 43(1) of the CNRA** states that a person who wishes to use or perform another person's work or who causes work to be performed in public for gain shall apply to the owner or the owner's agent for a licence to do so.

According to PEXH. 2, the notice of intended enforcement, the second 30 Defendant wrote to the manager of Satelite Beach demanding money due for the benefit of and settlement of members' loyalties. From the record, there is no proof that the first Plaintiff possessed a license to perform other persons' works or cause their works to be performed for gain. The equipment was seized from Satelite Beach because the invoices were due.

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5 At the hearing, when this court asked PW1 about ownership of Satelite Beach, he admitted that he had purchased it in 2016. He, however, denied having received a demand from the Defendants before the property was seized.

The record shows that Satellite Beach owed money in licensing fees. The second Defendant carries out the licensing under the management of the

- 10 first Defendant. Failure to acquire a license is an offense under the **CNRA**. This offense was committed at the premises owned by the first Plaintiff. What the 1st Plaintiff seems to find fault with is that prior notice was not issued of the money owed before the seizure took place. However, **section 53(2) and (3) of the CNRA** does not envisage prior notice before seizure of - 15 property on reasonable cause to believe that an offense is about to be committed or has been committed. All the inspector needs to produce before entering any premises is a certificate of authority as stated under **section 52 of the CNRA.**

The Plaintiff adduced evidence of PEXH.6 and PEXH. 7, as proof of payment 20 of fees and authorisation to continue construction, respectively by Mukono Municipal Council but these differ from copyright licenses. Therefore, the seizure of the 1st Plaintiff's equipment was not wrongful and cannot amount to conversion.

Having found so, I see no need to resolve the second issue. The 1st Plaintiff's 25 claim against the Defendants is hereby dismissed with no order as to costs.

## **Dated and signed at Arua this 20th day of February 2025.**

30 **Harriet Grace MAGALA Judge**

**Delivered online via ECCMIS this 6th day of March 2025.**